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FightBack Forums _ Private Parking Tickets & Clamping _ UK CPM - Visitor parking PCN
Posted by: DragonQ Mon, 20 Mar 2017 - 18:12
Post #1270665
My car was parked in a visitor's bay in my residential parking area. One morning I woke up to find a Parking Charge Notice attached to it from UK CPM, who have some signs up around the car park. The issue reason is not displaying a valid parking permit. I have a visitor's permit that is in the car but I am not sure how visible it was on this occasion.
UK CPM are a part of IPC, although the sign says they are a BPA member. I have two questions:
- Am I right in thinking that I needn't do anything until I receive a Notice to Keeper through the post?
- Is there any point contacting my management company to ask for the charge to be cleared (since it's designed to stop people who don't live here or aren't visiting using the bays, not to catch people who live here out), or are they likely to just refer me to UK CPM?
I've attached a redacted copy of the PCN and also a photo of the signs up around the area. I've had a quick look through the contract I signed with the management company when buying the property, as well as their "welcome pack", and can't see any mention of parking whatsoever.
Posted by: SchoolRunMum Mon, 20 Mar 2017 - 18:53
Post #1270677
QUOTE
- Am I right in thinking that I needn't do anything until I receive a Notice to Keeper through the post?
- Is there any point contacting my management company to ask for the charge to be cleared (since it's designed to stop people who don't live here or aren't visiting using the bays, not to catch people who live here out...
Yes and yes. But don't say who parked.
When complaining, write as the 'keeper' of the car and be assertive and insist there must be scope for the agent to cancel these for permit holders and if it costs a tenner you'll pay that (if you agree to do so, to get shot of this trash). Often there is a week or two window to do so, after which a landowner says get lost.
Add that, as you own the flat, you have rights and easements under your lease and a right to peaceful enjoyment. This is a baseless attempt to charge in a free car park area, where parking and rights of way are already offered in the lease, without caveat. Tell them that these pseudo 'charges' are not a feature of your contract and cannot be incorporated now without formal variation of the lease, which you will not agree to.
Tell them that you believe they, as Managing Agents, have a conflict of interests and are likely to be taking a kickback from each 'PCN', yet the entire regime is a matter of derogation from grant, contrary to the rights of residents. Even worse is the fact that UKCPM are notorious ex-clampers in a rotten industry and are known to sue residents for parking in their own car parks.
This has incensed you and you require these charges are quashed immediately. Finally, draw their attention to the case of Jopson v Home Guard (a persuasive appeal case)* attach the Jopson transcript and suggest that they need to seek legal advice because they are disregarding the rights of leaseholders and in the Jopson case, she claimed over £2000 in costs to beat a similar scam. Call it as it is.
*
http://nebula.wsimg.com/f6d657adf7df70d27e1dd285688b5701?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1
Posted by: DragonQ Tue, 21 Mar 2017 - 15:51
Post #1270955
Thanks for the reply. It's actually a house that I own, which includes a single parking space. I am not actually sure who owns the visitor bays within the car park, so I'm not sure what actually gives me the right to use the visitor bays (aside from the fact that I was given a permit for one).
Posted by: SchoolRunMum Tue, 21 Mar 2017 - 15:57
Post #1270960
Modern leases include rights of way and easements. That plus the fact you have a visitors permit, suggests you have primacy of contract.
Posted by: DragonQ Tue, 2 May 2017 - 16:52
Post #1281994
I have received a NTK and am drafting a response letter based on the MSE template for IPC members. Is there any way I can use their incorrect use of "BPA member" logos on their signs against them? Anything else I can add that's specific to this case?
By the way, I never received a reply from the management company. I'll be following up that too.
Posted by: Lynnzer Tue, 2 May 2017 - 18:05
Post #1282011
See my signature templates.
Use the 1st one then the other for Tortious Interferance.
In my opinion these are not appeal-able. You have no need to appeal when they are presumably using your own allocated or one that you have been granted the use of from the lease. You should instead put them to task.
Amend the letters and send them out.
Posted by: DragonQ Wed, 3 May 2017 - 18:24
Post #1282246
Thanks for the reply. Should I remove the part about "you must only operate on land where you have the landholder’s permission" since this is a communal space?
Also what kind of amount is reasonable for trespass (if it even applies in this case)?
Posted by: nosferatu1001 Thu, 4 May 2017 - 11:00
Post #1282418
If you have rights over the space, you are a joint landholder. Theyd need to get agreement from all those with interest.
£250 is a good start. Its aggravated because theyre operating a business from your land.
Posted by: Lynnzer Thu, 4 May 2017 - 11:37
Post #1282435
QUOTE (DragonQ @ Wed, 3 May 2017 - 19:24)
Thanks for the reply. Should I remove the part about "you must only operate on land where you have the landholder’s permission" since this is a communal space?
Also what kind of amount is reasonable for trespass (if it even applies in this case)?
They shouldn't even have agreed a parking regime without the Landowner's authority. http://forums.pepipoo.com/index.php?showtopic=113360
Posted by: DragonQ Thu, 4 May 2017 - 17:42
Post #1282576
I actually found the part about my parking rights in the property title:
"The right...to the use in common with all others entitled to a like right on a first come first served basis any visitors parking space in the vicinity of the property for the temporary parking of private motor vehicles."
They have an online enquiry form but the PCN says everything should be done in writing so sending it via recorded delivery might work better?
Posted by: AOneVs Thu, 4 May 2017 - 20:08
Post #1282606
I'm going to court at the end of this month with these cowboys. Same situation, but no permit required. Their signs had the BPA AOS logo too, when they are IPC.
I can't see how the IPC\IAS can disallow an appeal on the grounds the signage breaches the Consumer Protection from Unfair Trading Regulations 2008 by displaying the BPA logo.
I'll let you know how I get on in court.
Good luck!
Posted by: DragonQ Thu, 4 May 2017 - 22:05
Post #1282623
QUOTE (AOneVs @ Thu, 4 May 2017 - 21:08)
I'm going to court at the end of this month with these cowboys. Same situation, but no permit required. Their signs had the BPA AOS logo too, when they are IPC.
I can't see how the IPC\IAS can disallow an appeal on the grounds the signage breaches the Consumer Protection from Unfair Trading Regulations 2008 by displaying the BPA logo.
I'll let you know how I get on in court.
Good luck!
Nice, will be interested to hear how it goes.
Posted by: nosferatu1001 Fri, 5 May 2017 - 07:55
Post #1282651
QUOTE (AOneVs @ Thu, 4 May 2017 - 20:08)
I'm going to court at the end of this month with these cowboys. Same situation, but no permit required. Their signs had the BPA AOS logo too, when they are IPC.
I can't see how the IPC\IAS can disallow an appeal on the grounds the signage breaches the Consumer Protection from Unfair Trading Regulations 2008 by displaying the BPA logo.
I'll let you know how I get on in court.
Good luck!
Because the IAS are a kangaroo court that g'tee to uphold 80%+ of parking charges.
Posted by: Lynnzer Fri, 5 May 2017 - 08:59
Post #1282680
QUOTE (AOneVs @ Thu, 4 May 2017 - 21:08)
I'm going to court at the end of this month with these cowboys. Same situation, but no permit required. Their signs had the BPA AOS logo too, when they are IPC.
I can't see how the IPC\IAS can disallow an appeal on the grounds the signage breaches the Consumer Protection from Unfair Trading Regulations 2008 by displaying the BPA logo.
I'll let you know how I get on in court.
Good luck!
Corporate BPA member only. They can do this but they don't do POPLA.
I really can;t understand why the BPA allows Corporate Membership to IPC mebers. Seems a confict of interst to me. But,,,,,, this is the greedy parking industry.
Posted by: DragonQ Fri, 5 May 2017 - 09:11
Post #1282695
QUOTE (Lynnzer @ Fri, 5 May 2017 - 09:59)
Corporate BPA member only. They can do this but they don't do POPLA.
I really can;t understand why the BPA allows Corporate Membership to IPC mebers. Seems a confict of interst to me. But,,,,,, this is the greedy parking industry.
I've made a complaint to the BPA about their incorrect claims of being BPA AOS members. Don't really care but if it causes them grief that's fine with me. I've also submitted the letter to them, let's see what happens! Need to contact the management company again since they just ignored my original letter. Might call them to confirm they received it.
Posted by: DragonQ Sat, 20 May 2017 - 18:07
Post #1287040
Got a reply from UK CPM:
QUOTE
Within your letter, you state that UK Car Park Management are using your allocated bay for our own business purposes, please see below one of the images that was taken. of your vehicle at the time of the contravention. (All other images can be viewed on www.paymyticket.co.uk).
As you can see your vehicle was parked in a marked ‘V’ bay, not your allocated parking bay. The visitor bays are for visitors and whilst vehicles are parked within these bays a valid UK CPM visitor permit must be displayed at all times.
The parking conditions are in place to stop unauthorised parking, without a valid UK CPM permit displayed the operatives are unable to ascertain which vehicles are authorised to be parked. As a resident and permit holder you are fully aware of the terms and conditions for parking and that parking in breach of those terms may result in your vehicle being issued with a parking charge notice.
We have not breached the Data Protection Act by obtaining your details from the DVLA as your details were requested through the Reasonable Cause criteria of pursuing an outstanding parking charge. A PCN was correctly issued to your vehicle, as you ignored this notice a First Reminder was sent.
UK Car Park Management fully complies with the IPC’s Code of Practice. We do not own the land the vehicle was parked upon, however we do hold a legal contract that authorises our enforcement officers to monitor and maintain. the parking areas on behalf of the landowner. This therefore entitles UK CPM to issue and uphold all parking charge notices given to those who have breached the parking restrictions.
We will not be paying for trespass as no trespass has occurred, as we have already stated your vehicle was parked in a visitor bay.
It is not within your jurisdiction to claim for damages for misuse of the data from the DVLA as you are not the DVLA. Irrespective of this your details were correctly obtained to pursue an outstanding parking charge and nothing else. Therefore, there has been no wrongful application or misuse of the data from the DVLA.
Most of their reply is irrelevant because I never actually said they were using my "allocated bay" - I said it was an "allocated parking area" of mine (i.e. a visitor space). I get the feeling they are replying to the original template letter rather than the actual letter I wrote! They make the point that I am aware of the terms and conditions, ignoring the fact that my original letter stated that their terms and conditions are irrelevant as they are trumped by my property deeds, which state I can use the visitor bays without any mention of restrictions. Interestingly, the letter makes no mention of whether they will be pursuing the original parking charge or not but their language suggests they still expect me to pay it.
Posted by: Lynnzer Sat, 20 May 2017 - 20:19
Post #1287076
So progress this to the Managing Agents for their action.
What you need to do is build up a few rejections of your request for cancellation based on your leaseholder rights.
Then when they all fail to address this you are in a place of comfort to start a claim against the MA and UKCPS.
https://www.scribd.com/document/348528763/LBC-v2
Posted by: DragonQ Thu, 25 May 2017 - 16:32
Post #1288289
Neither the NTK nor subsequent letter from UK CPM actually mentions any potential legal action so that kind of letter seems a bit premature, although I definitely think I need to contact the management agency again.
Posted by: nosferatu1001 Fri, 26 May 2017 - 07:50
Post #1288417
It isnt prematrure to enforce your leased rights.
Posted by: DragonQ Fri, 26 May 2017 - 09:07
Post #1288432
QUOTE (nosferatu1001 @ Fri, 26 May 2017 - 08:50)
It isnt prematrure to enforce your leased rights.
I agree but the letter is centred around including the management agent in a threatened court case, which hasn't (yet) happened. I can say that I intend to add them as a party
if UK CPM try to take me to court and then cut out the irrelevent parts of the letter though.
P.S. I own the property, I don't rent it.
Posted by: Lynnzer Fri, 26 May 2017 - 09:12
Post #1288436
QUOTE (DragonQ @ Fri, 26 May 2017 - 10:07)
QUOTE (nosferatu1001 @ Fri, 26 May 2017 - 08:50)
It isn't premature to enforce your leased rights.
I agree but the letter is centred around including the management agent in a threatened court case, which hasn't (yet) happened. I can say that I intend to add them as a party
if UK CPM try to take me to court and then cut out the irrelevant parts of the letter though.
P.S. I own the property, I don't rent it.
The earlier you get both the managing agent and the landowner/lessor into this the better.
Tell them to get this nonsense taken care of and put them on notice of a joint action for damages.
Also warn them any further ticketing on you car will be considered a derogation of grant with similar action taken.
Posted by: nosferatu1001 Fri, 26 May 2017 - 10:56
Post #1288469
QUOTE (DragonQ @ Fri, 26 May 2017 - 10:07)
QUOTE (nosferatu1001 @ Fri, 26 May 2017 - 08:50)
It isnt prematrure to enforce your leased rights.
I agree but the letter is centred around including the management agent in a threatened court case, which hasn't (yet) happened. I can say that I intend to add them as a party
if UK CPM try to take me to court and then cut out the irrelevent parts of the letter though.
P.S. I own the property, I don't rent it.
Do you have freehold title to the parking space? If not, do you have a leasehold interest in the space?
Posted by: Lynnzer Fri, 26 May 2017 - 11:15
Post #1288473
QUOTE (nosferatu1001 @ Fri, 26 May 2017 - 11:56)
QUOTE (DragonQ @ Fri, 26 May 2017 - 10:07)
QUOTE (nosferatu1001 @ Fri, 26 May 2017 - 08:50)
It isnt prematrure to enforce your leased rights.
I agree but the letter is centred around including the management agent in a threatened court case, which hasn't (yet) happened. I can say that I intend to add them as a party
if UK CPM try to take me to court and then cut out the irrelevent parts of the letter though.
P.S. I own the property, I don't rent it.
Do you have freehold title to the parking space? If not, do you have a leasehold interest in the space?
The OP says the lease provides for this "The right...to the use in common with all others entitled to a like right on a first come first served basis any visitors parking space in the vicinity of the property for the temporary parking of private motor vehicles."
In any case UKCPM WILL NOT know who has rights of any sort on any space. They don't have a list of "visitor" cars; permit or no permit, and it would be entirely unable to say that the OP had no rights to use it.
Do you have to display a permit in your own allocated bay?
Posted by: nosferatu1001 Fri, 26 May 2017 - 12:09
Post #1288485
I was more making te point that you still have leased rights, even though you own the space, because you dont own the freehold to that space.
Posted by: DragonQ Fri, 26 May 2017 - 16:57
Post #1288556
QUOTE (Lynnzer @ Fri, 26 May 2017 - 12:15)
Do you have to display a permit in your own allocated bay?
According to UK CPM, yes. Again, nothing in the deeds about it though. It just says:
QUOTE
The right...to the exclusive use of the parking space comprised within the Management Land and numbered with the plot number relating to the property.
Posted by: nosferatu1001 Fri, 26 May 2017 - 21:31
Post #1288593
UKCPM have no right to vary your lease.
Posted by: Lynnzer Fri, 26 May 2017 - 21:44
Post #1288594
More to the point, you weren't ticketed for using the visitors bay then. You were done for not displaying a permit and they haven't a clue who has rights to any bay.
You can defend this on the presumption of them ticketing you in your allocated bay but with the overrider that in any case, you had rights to the use of any visitor bay too as part of your lease.
Start off now by sending a letter to the managing agent and the landowner/lessor and tell them you want this damn thing sorted or they will be named as joint parties to a claim for derogation of grant.
Then do the one to UKCPM for the damages claim for breach of the DPA.
I take it you saw this?
Posted by: DragonQ Fri, 26 May 2017 - 22:28
Post #1288599
QUOTE (Lynnzer @ Fri, 26 May 2017 - 22:44)
More to the point, you weren't ticketed for using the visitors bay then. You were done for not displaying a permit and they haven't a clue who has rights to any bay.
You can defend this on the presumption of them ticketing you in your allocated bay but with the overrider that in any case, you had rights to the use of any visitor bay too as part of your lease.
Start off now by sending a letter to the managing agent and the landowner/lessor and tell them you want this damn thing sorted or they will be named as joint parties to a claim for derogation of grant.
Then do the one to UKCPM for the damages claim for breach of the DPA.
I take it you saw this?
This thread is getting way too confusing. It feels like people are just popping in saying stuff without reading the thread. Let me clarify a few things:
1) I own a property. It comes with an allocated parking space. However, my own allocated parking space is irrelevant: UK CPM are charging me because my car was parked in a visitor bay without a permit being displayed (so they claim). Their photos show the visitor bay marking.
2) I sent an email to the management agent upon seeing the ticket on my car. I demanded that they contact UK CPM and cancel the charge. They have not replied.
3) I received the NTK. I replied to the NTK using the template http://www.thebridesmother.co.uk/Media/Templates.pdf.
4) I received a reply from UK CPM to my letter, basically saying that I don't own the space and I was aware of the conditions of having to display a permit due to the signs (see http://forums.pepipoo.com/index.php?showtopic=112566&view=findpost&p=1287040).
5) I plan to send a second email to the management agent.
Posted by: ostell Sat, 27 May 2017 - 06:31
Post #1288612
1) You have the right to park given in you lease. The "Charge" was for failing to display a permit. Where in your lease, which takes priority, does it say you have to display a permit?
2) & 5) hassle the managing agent again
4) See 1)
Posted by: Lynnzer Sat, 27 May 2017 - 07:14
Post #1288614
QUOTE (ostell @ Sat, 27 May 2017 - 07:31)
1) You have the right to park given in you lease. The "Charge" was for failing to display a permit. Where in your lease, which takes priority, does it say you have to display a permit?
2) & 5) hassle the managing agent again
And add in the landowner. Derogation of grant
QUOTE
4) See 1)
Posted by: DragonQ Sun, 28 May 2017 - 12:09
Post #1288881
QUOTE (ostell @ Sat, 27 May 2017 - 07:31)
1) You have the right to park given in you lease. The "Charge" was for failing to display a permit. Where in your lease, which takes priority, does it say you have to display a permit?
The deeds say nothing about needing a permit, hence my letter to UK CPM telling them to get stuffed.
QUOTE (ostell @ Sat, 27 May 2017 - 07:31)
2) & 5) hassle the managing agent again
Yep, I plan to.
QUOTE (Lynnzer @ Sat, 27 May 2017 - 08:14)
And add in the landowner. Derogation of grant
I have no idea who the landowner is. In the deeds the common areas, including visitor spaces, are merely labelled "management land".
Posted by: Lynnzer Sun, 28 May 2017 - 12:43
Post #1288890
QUOTE (DragonQ @ Sun, 28 May 2017 - 13:09)
QUOTE (ostell @ Sat, 27 May 2017 - 07:31)
1) You have the right to park given in you lease. The "Charge" was for failing to display a permit. Where in your lease, which takes priority, does it say you have to display a permit?
The deeds say nothing about needing a permit, hence my letter to UK CPM telling them to get stuffed.
QUOTE (ostell @ Sat, 27 May 2017 - 07:31)
2) & 5) hassle the managing agent again
Yep, I plan to.
QUOTE (Lynnzer @ Sat, 27 May 2017 - 08:14)
And add in the landowner. Derogation of grant
I have no idea who the landowner is. In the deeds the common areas, including visitor spaces, are merely labelled "management land".
It costs a tenner to find out from the Land Registry I believe. You can also ask the managing agent. They are obliged to let you know.
Posted by: DragonQ Mon, 29 May 2017 - 10:37
Post #1288985
Should I post the draft of the letter I intend to send the management company here first?
Posted by: DragonQ Fri, 2 Jun 2017 - 16:45
Post #1289986
Turns out the management company itself owns the land, at least that's what they've told me.
Posted by: Lynnzer Fri, 2 Jun 2017 - 17:15
Post #1289996
QUOTE (DragonQ @ Fri, 2 Jun 2017 - 17:45)
Turns out the management company itself owns the land, at least that's what they've told me.
Yeah, but are they the Lessor?
Posted by: ostell Sat, 3 Jun 2017 - 06:17
Post #1290094
This has been mentioned in another case in abither thread but it was in fact two different companies at Companies House. Get the full names of both. Even if they do reckon they own it then they cannot vary your lease at a whim.
Posted by: DragonQ Fri, 12 Jan 2018 - 18:30
Post #1346574
Quick update: I've received a Letter Before Claim from UKCPM's solicitor. I am preparing a response at the moment. Should I reply directly to UKCPM or to the solicitor that sent me the LBC?
Posted by: cabbyman Fri, 12 Jan 2018 - 18:34
Post #1346578
Show us the LBC, suitably redacted, and your proposed response. Gladstones????
Posted by: DragonQ Fri, 12 Jan 2018 - 18:51
Post #1346587
Hilariously non-compliant LBC attached, still working on the response. Yes it's Gladstones, how did guess?
I do notice though that they refer to the Pre-Action Protocol for Debt Claims, which came into force on 01/10/2017. Is there anything new here that would make any advice here or at the MSE forums out of date? For example the Practice Direction's list of stuff that needs to be in an LBC is for "pre-action procedures where no pre-action protocol or other formal pre-action procedure applies"; since the PAP for Debt Claims now exists, this list may no longer be relevant?
Posted by: cabbyman Fri, 12 Jan 2018 - 19:06
Post #1346590
My initial reaction is that you can't respond under PAP because they haven't sent you a compliant PAP!!!
I haven't familiarised my self with the protocol yet but others have and will advise in detail.
Posted by: nosferatu1001 Sun, 14 Jan 2018 - 00:50
Post #1346893
You respond requiring them to send a compliant lba.
Posted by: DragonQ Sun, 14 Jan 2018 - 15:08
Post #1346989
OK here's my proposed response, is it OK? I don't know where to send the letter though as they have given no reply address, only a link to their website where I can fill in the "reply form" (Annex 1 of the PAP for Debt Claims). Filling in the official form would basically entail explaining why I am not liable for the debt and also what documents I require from the claimant. I won't fill this in though until/unless I get a response from this letter.
QUOTE
Re: LETTER BEFORE CLAIM dated <date>
I am writing to acknowledge receipt of the above letter.
As instructed by your letter, I have read the Pre-Action Protocol for Debt Claims under the Civil Procedure Rules 1998 (hereby referred to as “the PAP”) and the Practice Direction on Pre-Action Conduct (hereby referred to as the “PD”). I refer you to Annex A of the PD which clearly lays out in section 2 what the claimant’s Letter Before Claim (hereby referred to as the “LBC”) should contain. I do not believe your LBC complies with the PD as it neglects to include various pieces of information listed within. I have attached a copy of this section of the PD as an appendix for your reference.
I am not legally trained and find it astonishing that you, a solicitor, are either not aware of, or are choosing not to comply with, the PD. I wish to remind you that paragraph 4 of the PD states that the court has the power to apply sanctions for non-compliance with the PD. The fact that you refer to the PAP suggests to me that you believe you have sent me a compliant LBC and that I am liable to respond under the PAP, yet the fact that your letter does not comply with the PD suggests that I am not. If you are indeed asking for a response under the PAP, please explain why you have not complied with the PD and send a new LBC that does comply with the PD. I will then be able to comply with my obligations under the PD.
I am sure many other non-legally trained motorists who receive such confusing letters are resigned to paying charges that they may not be liable for, in order to avoid unnecessary hassle. I find this unacceptable, particularly for such a well-known group of solicitors.
I expect an actual response to my letter rather than another generic template letter that does not address my questions and concerns.
Posted by: nosferatu1001 Mon, 15 Jan 2018 - 07:58
Post #1347136
Send to Gladstones postal address
Pretty sure if you search there is an email address as well.
Posted by: DragonQ Fri, 16 Feb 2018 - 17:48
Post #1358635
Got a very short letter from the solicitor, along with an FAQ, a copy of the initial response I sent to CPM and their evidence reply:
I notice it does not address at all the question I asked them:
QUOTE (Me)
If you are indeed asking for a response under the PAP, please explain why you have not complied with the PD and send a new LBC that does comply with the PD. I will then be able to comply with my obligations under the PD.
The FAQs do include things like a (supposed) breakdown of the costs. I've included some of the most relevant ones too:
Any recommendations on how to proceed from here?
Posted by: DragonQ Sat, 3 Mar 2018 - 19:45
Post #1363608
Bump
Posted by: Redivi Sun, 4 Mar 2018 - 07:36
Post #1363669
Dear Sir
Ref ****
Thank You for your letter dated ****
For the avoidance of doubt, I deny that any payment is owed to your client
Notwithstanding that I dispute a number of its other assertions, a valid permit was displayed in the vehicle
Please send a paper version of the PAP documents so that I can make a full response
Yours Faithfully
Posted by: antiBully Wed, 18 Apr 2018 - 00:18
Post #1375241
Perhaps try a variation of this? https://twitter.com/Parking_Justice/status/978072887650287621
Posted by: Ronie Thu, 17 May 2018 - 12:48
Post #1382877
Hi
I have got similar letter for the PCN issued in April 2017.
They stopped it after Nov 2017 but now sent me similar letter.
In my case it was ticket which was moved and was not displayed properly. Though, I showed it to Parking attendant (who does not have have any id and was not employed by UKCPM). He refused to cancel the PCN and wanted me to talk to UKCPM
There was no detail to contact or appeal on the PCN but I googled and send them detail but they refused. My paid ticket does have last three digit of my car and time.
Do you think I should reply to Gladstone with something? Letter is same what is attached in the above thread but with my detail on it.
Thanks
Ronie
Posted by: nosferatu1001 Thu, 17 May 2018 - 16:43
Post #1382942
You should start your own thread, as the rules you agreed to told you - one case, one thread.
Would you like other people to comment on your thread, about their issues, and drag it away?
If you have a lba you MUST RESPOND. there's no choice here.
Posted by: Ronie Tue, 22 May 2018 - 13:46
Post #1384105
Thanks
My thread is already there: http://forums.pepipoo.com/index.php?showtopic=113731&st=20&gopid=1384104&#entry1384104
I did not get LBA though but got Letter before claim.
Do they go to court? Most of threads says forget it ....Have you got court orders yet?
Posted by: ostell Tue, 22 May 2018 - 16:17
Post #1384161
Letter befoe Action, Letter before Claim same differrence
Which threads are saying forget it? Not on here.
Posted by: Ronie Thu, 24 May 2018 - 08:59
Post #1384597
I mean most of people says forget it when google it.
Specially at the beginning of this process. Moreover, it is not ethical to ask for money if there is no loss to landholder as I have paid for ticket & ticket machine takes last three digit of my car.
Posted by: nosferatu1001 Thu, 24 May 2018 - 09:16
Post #1384606
The parking companies arent ethical. Until they get shut down, you have to do deal with it
People who are not well informed say to ignore it, universally and without qualification. Between pepipoo and MSE, the two most knowledgeable sources around, you will NOT find that.
Posted by: Eljayjay Thu, 24 May 2018 - 09:51
Post #1384617
Ronie,
You are hijacking DragonQ's thread.
Use your own thread for comments which have no bearing on DragonQ's situation.
Posted by: Ronie Thu, 24 May 2018 - 09:54
Post #1384619
Sorry about that.
I will update my thread. Last question did dragon got any further communication?
Posted by: DragonQ Wed, 13 Jun 2018 - 21:20
Post #1390297
Received the claim forms by post today. I need to return the "Acknowledgement of service" and "Defence and Counterclaim" forms within about 10 days.
Can anyone help me write a defence please?
Posted by: ostell Wed, 13 Jun 2018 - 21:33
Post #1390304
No you don't. You acknowledge the claim using the details and password on the form. You put NOTHING in the defence at this time. This gives you 33 days from date of issue to get your defence in to the court. Get the Ack done NOW
Look around at other defences and modify to suit your situation. Post on here for critique.
Posted by: nosferatu1001 Wed, 13 Jun 2018 - 21:36
Post #1390307
You will also email your defence , signed if course, not posted on a firm
You must do the ack TODAY. Tell us the issue date.
Posted by: DragonQ Thu, 14 Jun 2018 - 07:25
Post #1390368
The form is dated 11th June. I will sort it out when I get home tonight.
Posted by: DragonQ Thu, 14 Jun 2018 - 16:22
Post #1390545
I assume I don't want to contest the jurisdiction of the claim made against me?
Posted by: Jlc Thu, 14 Jun 2018 - 16:27
Post #1390547
QUOTE (DragonQ @ Thu, 14 Jun 2018 - 17:22)
I assume I don't want to contest the jurisdiction of the claim made against me?
If everything is in England/Wales then no.
Posted by: Eljayjay Thu, 14 Jun 2018 - 17:15
Post #1390564
You say that you bought the property.
Presumably, it is a leasehold flat.
Do you have a copy of your lease?
If not, it is vital that you get hold of a copy. The solicitor acting for you when you bought the property will almost certainly have a copy in his/her files and, if you are lucky, will send you a copy free of charge. Otherwise, you will be able to obtain a copy from the Land Registry by completing a form OC2 and paying the appropriate fee.
Posted by: DragonQ Fri, 15 Jun 2018 - 16:10
Post #1390867
QUOTE (Eljayjay @ Thu, 14 Jun 2018 - 17:15)
You say that you bought the property.
Presumably, it is a leasehold flat.
Do you have a copy of your lease?
If not, it is vital that you get hold of a copy. The solicitor acting for you when you bought the property will almost certainly have a copy in his/her files and, if you are lucky, will send you a copy free of charge. Otherwise, you will be able to obtain a copy from the Land Registry by completing a form OC2 and paying the appropriate fee.
No, it is a freehold house. The title deeds explicitly grant me permission to use the visitor parking spaces and do not mention any limitations regarding permits at all.
I've sent the acknowledgement online saying I will defend the full amount. I'll have a go at writing a defence this weekend.
Posted by: Eljayjay Fri, 15 Jun 2018 - 22:27
Post #1391000
Precisely what do the deeds say?
Presumably, you do not own the freehold to the visitors' spaces because, if you did, they would just be your parking spaces. So, what is the deal as far as they are concerned? What binds to you to their freeholder? Is that a lease and, if so, what does the lease say?
If you provide some detailed information, I am sure that we could provide you with some helpful tips for your defence.
Posted by: DragonQ Sat, 16 Jun 2018 - 16:17
Post #1391144
QUOTE (Eljayjay @ Fri, 15 Jun 2018 - 22:27)
Precisely what do the deeds say?
Presumably, you do not own the freehold to the visitors' spaces because, if you did, they would just be your parking spaces. So, what is the deal as far as they are concerned? What binds to you to their freeholder? Is that a lease and, if so, what does the lease say?
If you provide some detailed information, I am sure that we could provide you with some helpful tips for your defence.
As I said way back in http://forums.pepipoo.com/index.php?showtopic=112566&view=findpost&p=1282576, my property title includes this line:
"The right...to the use in common with all others entitled to a like right on a first come first served basis any visitors parking space in the vicinity of the property for the temporary parking of private motor vehicles."
Posted by: Eljayjay Sat, 16 Jun 2018 - 17:26
Post #1391161
I am unclear about how your deeds to your freehold property give you a right to share visitors’ spaces, which presumably are not part of your freehold property, with others.
Is this situation explained in your deeds? Do your deeds, for example, say that you are a co-owner of the visitors’ spaces? Do they state who is responsible for the upkeep of the visitors’ spaces. Is there a management company which attends to this? If so, who owns the management company?
If your deeds give you a right to park (i.e. something that you can do), they will almost certainly contain covenants about what you cannot do (e.g. you cannot park a juggernaut in the visitors’ spaces, but not in those precise words) and what you must do (e.g. you must comply with rules or regulations made by…).
If this had been a situation involving a lease, you would also need to find out what the lease says, if anything, about third party rights. [The importance of this is that, if a lease/contract does not expressly state that a third party (e.g. a parking company) cannot enforce its terms, then the third party cannot enforce its terms. Do your deeds mention anything about third party rights?
I really cannot believe that just a single line covers parking in the visitors’ spaces. I think you will need to look for other clauses in the deeds which may not mention parking at all, but which will be of relevance.
Posted by: DragonQ Sat, 16 Jun 2018 - 18:46
Post #1391179
QUOTE (Eljayjay @ Sat, 16 Jun 2018 - 17:26)
I am unclear about how your deeds to your freehold property give you a right to share visitors’ spaces, which presumably are not part of your freehold property, with others.
Is this situation explained in your deeds? Do your deeds, for example, say that you are a co-owner of the visitors’ spaces? Do they state who is responsible for the upkeep of the visitors’ spaces. Is there a management company which attends to this? If so, who owns the management company?
The management company presumably owns the visitor spaces because the deeds define the area in which the visitor spaces reside as "Management Land" and defines "Visitors Parking Spaces" as "parking spaces marked V on the plan situate within the Management Land".
QUOTE (Eljayjay @ Sat, 16 Jun 2018 - 17:26)
If your deeds give you a right to park (i.e. something that you can do), they will almost certainly contain covenants about what you cannot do (e.g. you cannot park a juggernaut in the visitors’ spaces, but not in those precise words) and what you must do (e.g. you must comply with rules or regulations made by…).
The only restriction mentioned is in the same line as the one I quoted above, which says vehicles cannot be more than 3 tonnes in weight. There is nothing mentioned about permits or third parties whatsoever.
QUOTE (Eljayjay @ Sat, 16 Jun 2018 - 17:26)
If this had been a situation involving a lease, you would also need to find out what the lease says, if anything, about third party rights. [The importance of this is that, if a lease/contract does not expressly state that a third party (e.g. a parking company) cannot enforce its terms, then the third party cannot enforce its terms. Do your deeds mention anything about third party rights?
I really cannot believe that just a single line covers parking in the visitors’ spaces. I think you will need to look for other clauses in the deeds which may not mention parking at all, but which will be of relevance.
I cannot find any mentions of third party rights whatsoever but I've read through again and picked out things that may be relevant:
The rights to the use of visitor parking spaces is defined in Schedule 1: Rights Granted for the Benefit of the Property. This includes things like right of way over the roads, shared accessways, even as broad as "the right of way and use of for all reasonable purposes the Management Land...reasonable domestic and recreational purposes only".
Schedule 2 describes rights of the transferor, which includes things like access for repairs, etc. but this mentions nothing about third party rights either.
Schedule 4 contains restrictions on the transferee, which includes not parking commercial vehicles, caravans, heavy goods vehicle on the land.
Schedule 9 contains additional restrictions on rights granted in Schedules 1 & 2 such as the rights to shared accessways requiring "paying a fair proportion of any expense necessarily incurred in inspecting maintaining repairing and renewing them" - I assume this is covered by my rather hefty annual maintenance fee and I am not convinced the parking spaces count as "shared accessways" anyway.
Schedule 9 also explicitly says: "The Transferor may at any time modify or release any covenant or other restriction enforceable by it in respect of any part of the Development or any adjoining or neighbouring land and the Transferor shall not be bound by any plotting or development scheme relating to the Development and such other land and may at any time modify or abandon any such scheme." Does this essentially give them the right to require permits without me agreeing? Even if it did, surely that doesn't give UKPCM any rights here that trump the deeds?
I'm happy to post a censored copy of the deeds here if it helps?
Posted by: Eljayjay Sat, 16 Jun 2018 - 19:35
Post #1391193
If you can post a redacted version of the deeds, that would be good.
Apart from "paying a fair proportion of any expense necessarily incurred", it would be interesting to know what, if any, other charges are payable. If there are none, how did the parking company acquire the right to levy parking charges? An agent cannot do anything which its principal cannot do.
If you look at post #7 in Dave18's thread, you will see the sort of questions that I would ask the parking company in a leasehold situation.
Posted by: emanresu Sun, 17 Jun 2018 - 05:56
Post #1391236
QUOTE
The management company presumably owns the visitor spaces because the deeds define the area in which the visitor spaces reside as "Management Land" and defines "Visitors Parking Spaces" as "parking spaces marked V on the plan situate within the Management Land".
The MA owns nothing and has no money other than the monies it will take / recharge the residents. It will be the Freeholder/Head Leaseholder who owns it and the UKCPM contract - which is key - should be with them OR their nominated representatives which may not be the MA but usually is.
Posted by: DragonQ Sun, 17 Jun 2018 - 09:29
Post #1391256
I asked http://itsyourplace.co.uk/whatwedo.html (i.e. the people we email with any questions or issues) who owned the land last year and their response was https://beta.companieshouse.gov.uk/company/04696240, which is the company who sends us budget statements and annual service charge demands each year.
The redacted property title is too big to attach so I've uploaded it https://drive.google.com/file/d/1NM2EujnEugnrv4yF8ISaC7g9_nuebDrp/view?usp=sharing. Thanks in advance for taking a look!
Posted by: emanresu Sun, 17 Jun 2018 - 09:55
Post #1391265
The address of the MA / Head Leaseholder traces back to the housebuilder Crest Nicholson. It is often the case that the common parts on new schemes is kept in the ownership of the hosebuilder. (See Copper Quarter in Swansea as an example).
In addition if that company sends out and collects money why is it showing a Companies House as a dormant company with no assets and no income. You say it has assets ( the common areas) and has income ( the charges it levies ) but it does not think so. You might want to make enquiries with Crest about this company and get clarification. It may be you are one of the shareholders to the MA (as is often the case) but it can't be checked as the MA have not filed any shareholder information.
Property law is a black hole if you don't check.
Posted by: DragonQ Sun, 17 Jun 2018 - 10:51
Post #1391272
It's a bit odd but there is some more information in the annual Directors' Report from The Manor (Aldershot) Management Ltd. It says:
"The company's principal activity during the year continued to be that of acting as trustees of a statutory trust in respect of the service charge monies collected for the maintenance of a residents association for The Manor (Aldershot) Management Company."
"The company is considered to be dormant and non trading and...act as trustees to deal with the service charges due from The Manor (Aldershot) Management Company".
"The Directors have appointed itsyourplace as professional managing agents to deal with the day to day administration of the resident association."
Schedule 10 Clause 5 implies that as a property owners I am a "member of the Management Company" but I have no idea what that means in actuality.
Posted by: Eljayjay Sun, 17 Jun 2018 - 13:16
Post #1391295
I have given your attachment a quick read through.
I cannot find anything in it which would commit you to complying with the parking company's scheme in any way, shape or form.
I shall be busy for the rest of today, but shall come back to you with more detail tomorrow.
A member of a company is a shareholder. If you visit the Companies House website - use only the gov.uk version - you can look up the memorandum and articles of association of the management company. It is worth a browse because it tells you how the directors are appointed and you may wish to become one. You can also find out who the current directors are.
I would not be at all surprised if the managing agents have entered into the parking contract with the parking company without reference to the directors.
Posted by: DragonQ Sun, 17 Jun 2018 - 13:41
Post #1391300
Thanks a lot Eljayjay, I really appreciate it.
I can't find the details right now but I think the directors were the hosts of the Annual General Meeting I attended last year, in which case they definitely supported the parking scheme because they invited representatives of UK CPM to the meeting. Does the fact that I am a shareholder of the company give me any more ammunition in this case? I never voted for, or agreed to, such a parking scheme because it was enacted before I took ownership of the property. But if I am a shareholder of the company that either owns or has an interest in the land, surely they would need my permission to even be conducting business on the land?
Also, should I put a counter-claim request (for stress, and time and effort spent) in the defence or does that come later?
Posted by: Eljayjay Sun, 17 Jun 2018 - 17:20
Post #1391359
I was just taking a quick peep when I saw your post.
I bet you cannot find anything in your attachment or any other documentation that empowers the management company to charge you for parking and, if they cannot charge you for parking, their agent, i.e. the parking company, cannot charge you for parking either.
I shall be back tomorrow to put some flesh on the bones.
Posted by: emanresu Sun, 17 Jun 2018 - 18:24
Post #1391388
QUOTE
I cannot find anything in it which would commit you to complying with the parking company's scheme in any way, shape or form.
Housebuilders like Crest tend to use a template Law Society lease. If they have used it, there is usually a catch-all phrase that allows the (common areas) Freeholder/Head Leaseholder to impose terms "for the better management of the estate" or some such phrase. You should check the last / second to last Schedules. It is usually buried at the back.
Posted by: nosferatu1001 Sun, 17 Jun 2018 - 20:17
Post #1391425
You cannot counterclaim for costs arising from the claim. That's just a costs
No chance of stress
At best DPA breach.
Posted by: Eljayjay Mon, 18 Jun 2018 - 15:29
Post #1391715
Below you will find a draft defence for you to post on MCOL. Further below, you will find a draft counterclaim for you to post on MCOL at the same time. There are some details which you need to enter.
You will need to pay a court fee of £35 to cover the counterclaim.
Bringing a counterclaim will result in the matter coming to a head at a hearing. If you do not counterclaim, you run the risk that case will be hanging over your head for months only for the parking company to discontinue at the last possible moment (with the possibility that they might come at you again at any time within a six-year period). The counterclaim prevents this.
Please do read thoroughly both the defence and the counterclaim to check them for accuracy before posting them on MCOL.
Once you have posted your defence and counterclaim, there will be an exchange of notices of direction. At that stage, you will have the opportunity to name the County Court where the case will be heard. Once the case has been allocated to a particular court, you stop dealing through MCOL. The Court to which the case has been allocated will notify you of the date of the hearing. It will also issue you with instructions about what you need to do. The instructions are likely to include a date by which you must provide your witness statement and exhibits to both the Court and the Claimant. That date is usually two weeks before the hearing. When you submit your witness statement, you will also be able to submit a statement of legal arguments.
The witness statement and the statement of legal arguments provide an opportunity for you to flesh out your defence by saying what you know and what you believe respectively.
Obviously, if you have any questions on the defence, the counterclaim or the process, please do not hesitate to ask.
You may wish to await the comments of others before doing anything.
The statement of defence...
Introduction
1. I, <your full name>, of <your address> am the Defendant in this case and I make this, my statement of defence.
2. I acknowledge that I am the registered keeper of vehicle, registration number <VRN>, and that the vehicle was parked at <location> on <date of event>.
3. I do, however, deny that I owe any amount to the Claimant in relation to my vehicle being parked there on that or any other occasion.
4. Although the Claimant asserts that its cause of action is a breach of contract, I have never entered into any contract with the Claimant.
5. This case relates to land where my rights are governed by a Transfer dated <date of document>.
6. The Claimant has chosen to blatantly disregard both the existence of the Transfer and my rights under it.
The Claimant’s failure to comply with the Pre-Action Protocol for Debt Claims
7. The Claimant issued a letter of claim to me on <date>, but the letter failed to comply with Pre-Action Protocol for Debt Claims.
8. I responded to the letter of claim on <date> requesting a compliant letter of claim.
9. Despite my request, the Claimant has never sent a compliant letter of claim to me.
10. Having failed to comply with the Protocol, the Claimant should not have brought its claim.
********** THE PRECISE WORDING OF THE NEXT PARAGRAPH IS DEPENDENT ON THE WORDING OF THE PARTICULARS OF CLAIM… **********
11. In addition, in its Particulars of Claim dated <date of claim>, although the Claimant makes bald statements about its “terms and conditions”, it has not provided me with a copy of the contract containing those terms and conditions and it has not specified the particular term(s) or condition(s) which it purports me to have breached.
12. In the event of the Claimant providing further details of its Particulars of Claim, I reserve the right to amend or add to this, my statement of defence.
The Claimant’s negligence
13. The Claimant is a well-known parking operator with wide experience in the field.
14. With such wide experience of parking matters, it is reasonable to expect the Claimant to know that, for a parking scheme to be valid, a contract needs to exist between itself and a person who (a) is either the owner or occupier of the land or authorised under or by virtue of arrangements made by the owner or occupier of the land and (b) has power to override any pre-existing contrary contractual conditions applying to the land.
15. The Claimant has, however, acted negligently by failing to establish the credentials of the other party to its parking contract, whoever that other party may be.
16. If the Claimant had acted with skill, care and diligence, it would have realised that the other party to its contract to manage parking on the relevant land, whoever it may be, is not empowered to enter into such a contract with the Claimant.
17. If the Claimant had acted with skill, care and diligence, it would have detected that the land is subject to a pre-existing terms and conditions which have primacy of contract over the Claimant’s fatally flawed arrangements.
The Defendant’s standing
18. In a Transfer dated <date of document>, I am described as the “Purchaser” which is defined as “the Transferee referred to herein”.
19. In the Transfer, in consideration of the purchase price, a freehold property, which is my home, was transferred to me together certain rights including the right to use any visitors parking space in the vicinity of the property for the temporary parking of private motor vehicles not exceeding three tonnes gross laden weight.
20. The Transfer acknowledges receipt of the purchase price by the Transferor.
21. The purchase price included full consideration for my right to park in the visitors parking spaces.
22. There are no other parking charges for which I am liable.
23. I am, therefore, fully entitled to use the visitors parking spaces and, when the vehicle was parked in one of them on <date of event>, it was parked in full compliance with the Transfer without any parking charge being due.
24. I am further protected against the Claimant’s unauthorised and predatory parking scheme by ( a ) the Claimant’s lack of any third party rights in relation to the Transfer, ( b ) the legal principle of non-derogation from grant implied in all such documents, and ( c ) the legal principle of the right to quiet enjoyment also implied in all such documents.
The Transferor’s standing
25. My relationship with the Transferor is governed directly by the Transfer, not via any contract with the Claimant.
26. The Transferor has transferred the property to me with the aforesaid right to use the visitors parking spaces and has reserved no right to impose any further terms governing my use of the visitors parking spaces either directly or through the Claimant.
27. If I had breached any term or condition of my Transfer, which I have not, the Transferor’s remedy would be to seek damages, not a parking charge, from me and/or to seek an injunction ordering me not to repeat the breach.
28. Consequently, neither the Transferor nor its agents, if any, have any standing in relation to the claim.
The Management Company’s standing
29. My relationship with the Management Company is governed directly by the Transfer, not via any contract with the Claimant.
30. The Transfer confers neither any right nor any obligation on the Management Company to impose any further terms governing my use of the visitors parking spaces either directly or through the Claimant.
31. Consequently, neither the Management Company nor its agents, if any, have any standing in relation to the claim.
The Claimant’s standing
32. There is nothing in the Transfer or elsewhere which compels me to enter into a contract with the Claimant, who is a stranger to the Transfer, for parking in the visitors parking spaces.
33. Insofar as the visitors parking spaces are concerned, the intention of my Transfer and those of my fellow Transferees was to provide us with rights to use those spaces.
34. The parties to the Transfers had no intention to allow a stranger to them, i.e. the Claimant, to use our visitors parking spaces for its business purposes.
35. It is perverse that the Claimant should seek to manage parking in our private car park by making parking available to the general public (albeit at exorbitant cost).
36. The Claimant cannot derive any right to use the visitors parking spaces for the purposes of its business from any of the parties to the Transfers.
37. It follows that the Claimant has no parking to offer and, for the purposes of a contract, the Claimant lacks consideration.
38. In turn, it follows that the Claimant has no grounds for charging me for my use of the visitors parking spaces.
39. Insofar as the visitors parking spaces are concerned, the Claimant is nothing more than a nuisance without any standing at all.
The counterclaim...
1. I make this, my counterclaim, against the Claimant.
2. If, before the Claimant introduced its parking scheme, it had bothered to use skill, care and diligence to make enquiries through the Land Registry to find what pre-existing terms applied to the land, the Claimant would have realised that it needed to negotiate with and obtain agreement from all individual Purchasers/Transferees.
3. The Claimant is able to pursue individuals, such as myself, as the registered keeper of a vehicle for unpaid parking charges by making use of Schedule 4 of the Protection of Freedoms Act 2012 to obtain our personal details from the DVLA’s database.
4. The Claimant requested and obtained my personal details from the DVLA under their KADOE (Keeper of a Vehicle at the Date of an Event) Agreement for the alleged parking contravention.
5. A requirement of the KADOE agreement is that the Customer (i.e. the Claimant in this case) must have “reasonable cause” to request a registered keeper’s personal details.
6. The Claimant would no doubt claim that it had “reasonable cause” to request my personal details; however, being in business as a parking operator, the Claimant must know that, without having made the enquiries mentioned in 2 above, it could not possibly claim to have “reasonable cause”.
7. In addition, the Supply of Goods and Services Act 1982 states that “In a relevant contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill”.
5. By failing to make those enquiries and by failing to observe the implied term in its alleged contract with me, the Claimant was negligent.
6. The Claimant did not have “reasonable cause” and, in consequence, the Claimant did, therefore, both obtain and misuse my personal data in contravention of the Data Protection Act 1998.
7. As a result of its negligence and of obtaining my personal data without reasonable cause, the Claimant has made me suffer unwarranted and substantial damage or distress by untruthfully misrepresenting its standing, by making false allegations of breach of contract or trespass against me, by alleging that I am a debtor, and by forcing me to defend myself in Court.
8. For the damage and distress caused by the Claimant obtaining and misusing my personal data from the DVLA, I claim £100.
Posted by: DragonQ Mon, 18 Jun 2018 - 16:30
Post #1391751
Thanks, I will take a look at this list of paragraphs and compare to one I had already drafted and ensure everything is covered.
I have two questions:
1) What is the difference between this Defence and the later Witness Statement? Is the latter essentially just the former with evidence cited?
2) The only copy of the "additional provisions" document I posted earlier that I actually have is the one signed by the previous owners. When buying the house, we signed a Deed of Covenant which basically bound us and the management company to the same clauses in the original document. I assume this won't cause any issues? The exact wording is:
QUOTE
The New Owner covenants with the Management Company...to observe and perform all covenants and other obligations on the part of the Purchaser contained in the Original Transfer.
The Management Company covenants with the New Owner...to observe and perform all covenants and other obligations on the part of the Management Company contained in the Original Transfer.
Posted by: Eljayjay Mon, 18 Jun 2018 - 17:39
Post #1391772
Insofar as a defence is concerned, the following is taken from the MoJ's website.
Content of defence
16.5
(1) In his defence, the defendant must state –
(a) which of the allegations in the particulars of claim he denies;
(b) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and
© which allegations he admits.
(2) Where the defendant denies an allegation –
(a) he must state his reasons for doing so; and
(b) if he intends to put forward a different version of events from that given by the claimant, he must state his own version.
(3) A defendant who –
(a) fails to deal with an allegation; but
(b) has set out in his defence the nature of his case in relation to the issue to which that allegation is relevant,
shall be taken to require that allegation to be proved.
(4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation.
(5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation.
(6) If the defendant disputes the claimant’s statement of value under rule 16.3 he must –
(a) state why he disputes it; and
(b) if he is able, give his own statement of the value of the claim.
(7) If the defendant is defending in a representative capacity, he must state what that capacity is.
(8) If the defendant has not filed an acknowledgment of service under Part 10, the defendant must give an address for service.
(Part 22 requires a defence to be verified by a statement of truth)
(Rule 6.23 makes provision in relation to addresses for service.)
So, for the most part, when it comes to a debt claim, it sets out why the defendant denies that there is a debt. I think of it as being a statement of legal arguments with some but not all of the flesh on the bones.
A witness statement, on the other hand, provides the missing flesh on the bones. Obviously, it is a statement detailing what the defendant or other witness has witnessed, e.g. what they believe to be true because they saw it, read it, etc.. In your case, your witness statement will draw upon what you have read in the Transfer and any other relevant documents. Copies of the documents will be included with the witness statement in your bundle and, when you attend court, you will be expected to take the originals with you. It looked to me like the "additional provisions" document was obtained from the Land Registry and, if so, it will almost certainly suffice; however, if in doubt, it would be wise to include the deeds of covenant in your bundle too.
Everything can be weaved together by a statement of legal arguments.
Do not be overawed by all of this - it is nowhere near as complicated as it might seem.
Posted by: nosferatu1001 Tue, 19 Jun 2018 - 07:02
Post #1391870
Eli - the defence should be written in the 3rd person, so "the defendant"
Why is it a £35 fee for a counterclaim of only £100? I would cite Vidal-Hall as justificaiton for compensaiton where no direct damages were caused
Posted by: Eljayjay Tue, 19 Jun 2018 - 15:00
Post #1392050
I expect the OP to be able to successfully defend the claim, but I do not expect him to win a counterclaim.
The objective of the counterclaim is simply to make sure that the parking company does not wriggle out of a hearing at the last possible moment.
Posted by: DragonQ Wed, 20 Jun 2018 - 10:54
Post #1392252
OK so I've taken my original defence and removed some detail, then merged in a lot of the stuff from the example posted by Eljayjay. I assume I can add more detail (e.g. refer to specific paragraphs in the Transfer document) when I actually submit evidence with the witness statement?
Other things I originally had but have now left out are:
- A whole spiel about how the management company and UK CPM agreed that they were not there to punish homeowners but to prevent unauthorised parking. I haven't yet found the minutes of this meeting which would constitute evidence.
- A whole series of paragraphs about the Beavis case and how it doesn't apply to this case.
- A word about the Gladstones' "robo claim" practices and being investigated by the SRA - I feel like leaving this out because I haven't found evidence for it.
I haven't put in the counter-claim stuff yet but this is the main defence draft. Any thoughts?
QUOTE
BETWEEN:
UK CAR PARK MANAGEMENT LIMITED
-and-
DEFENDANT
________________________
DEFENCE STATEMENT
________________________
1) It is admitted that the Defendant is the registered keeper of the vehicle in question.
2) The Defendant acknowledges that the alleged parking contravention is in reference to an occasion whereby the Defendant’s vehicle was parked in a visitor residential parking space at the home address of the Defendant.
3) The Defendant denies any amount is owed to the Claimant in relation to the incident described in the Particulars of Claim, or any other occasion where the Defendant’s vehicle is parked in a visitor residential parking space at the home address of the Defendant.
4) The Particulars of Claim (dated <DATE>) states the Claimant is demanding payment for “breaching the terms of parking on the land”. However, the Claimant has not provided the Defendant with a copy of the contract containing those terms and conditions and it has not specified the particular term(s) or condition(s) which it purports the Defendant to have breached.
a) The Defendant contends he has not entered a contract with the Claimant and so cannot be in breach of any terms.
b) In the event of the Claimant providing further details of its Particulars of Claim, the Defendant reserves the right to amend or add to this, his statement of defence.
5) The Claimant issued a Letter Before Claim to the Defendant on <DATE> but the letter failed to comply with the Pre-Action Protocol for Debt Claims.
a) The Defendant responded to the Letter Before Claim on <DATE> asking the Claimant whether their intention was to request a response under the Pre-Action Protocol and, if so, to explain their failure to comply with the Pre-Action Protocol and send a new Letter Before Claim that was compliant. The Defendant also made it clear he desired a human response to the letter, not a generic templated one.
b) The Claimant responded to the Defendant’s letter on <DATE> with a generic list of Frequently Asked Questions and included a previous letter sent to the Defendant by their client. This was also not compliant with the Pre-Action Protocol.
c) The Defendant replied again to the Claimant’s letter on <DATE> explicitly asking the Claimant to indicate clearly whether they intended to begin court proceedings and, if so, send a paper copy of the Pre-Action Protocol so that the Defendant could respond.
d) The Claimant never responded to this request and thus never sent the Defendant a compliant Letter Before Claim. Having failed to comply with the Pre-Action Protocol for Debt Claims, the Claimant should not have brought this claim.
6) In the Property Title owned by the Defendant (dated <DATE>), it is stated that “the land has the benefit of the rights granted by but is subject to the rights reserved by the Transfer dated <DATE> referred to in the Charges Register” (hereby referred to as “the Transfer”). This case relates to land where the Defendant’s rights are governed by the Transfer.
7) The Claimant has chosen to blatantly disregard the existence of the Transfer and the rights granted to the Defendant under it.
8) The Defendant, as the property owner, is referred to as the “Purchaser” and “Transferee” within the Transfer.
9) In the Transfer, in consideration of the purchase price, a freehold property, which is the Defendant’s home, was transferred to the Defendant together with certain rights, including the right to use any visitors parking space in the vicinity of the property for the temporary parking of private motor vehicles not exceeding three tonnes gross laden weight.
a) The Transfer acknowledges receipt of the purchase price by the Transferor.
b) The purchase price included full consideration for the Defendant’s right to park in the visitors parking spaces.
c) There are no other parking charges for which the Defendant is liable, according to the Transfer.
d) The Defendant is, therefore, fully entitled to use the visitors parking spaces and, when the vehicle was parked in one of them on <DATE>, it was parked in full compliance with the Transfer without any parking charge being due.
10) The Defendant is further protected against the Claimant’s unauthorised and predatory parking scheme by (a) the Claimant’s lack of any third-party rights in relation to the Transfer, (b) the legal principle of non-derogation from grant implied in all such documents, and © the legal principle of the right to quiet enjoyment also implied in all such documents.
11) The Defendant’s relationship with the Transferor is governed directly by the Transfer, not via any contract with the Claimant.
a) The Transferor has transferred the property to the Defendant with the aforesaid right to use the visitors parking spaces and has reserved no right to impose any further terms governing the Defendant’s use of the visitors parking spaces, either directly or through the Claimant.
b) If the Defendant had breached any term or condition of the Transfer, which is not the case, the Transferor’s remedy would be to seek damages, not a parking charge, from the Defendant and/or to seek an injunction ordering the Defendant not to repeat the breach.
c) Consequently, neither the Transferor nor its agents, if any, have any standing in relation to the claim.
12) The Defendant’s relationship with the Management Company (also defined in the Transfer) is governed directly by the Transfer, not via any contract with the Claimant.
a) The Transfer confers neither any right nor any obligation on the Management Company to impose any further terms governing the Defendant’s use of the visitors parking spaces either directly or through the Claimant.
b) Consequently, neither the Management Company nor its agents, if any, have any standing in relation to the claim.
13) There is nothing in the Transfer or elsewhere which compels the Defendant to enter into a contract with the Claimant, who is a stranger to the Transfer, for parking in the visitors parking spaces.
14) Insofar as the visitors parking spaces are concerned, the intention of the Transfer was to provide the Defendant (and other Transferees) with rights to use those spaces.
15) It is perverse that the Claimant should seek to manage parking in the private car park by making parking available to the general public (albeit at exorbitant cost).
16) The Claimant cannot derive any right to use the visitors parking spaces for the purposes of its business from any of the parties to the Transfers.
17) It follows that the Claimant has no parking to offer and, for the purposes of a contract, the Claimant lacks consideration.
18) In turn, it follows that the Claimant has no grounds for charging the Defendant for the use of the visitors parking spaces: they do not own the land where the vehicle was parked, nor do they have any interest in the land, and thus they lack the capacity to offer parking. The Claimant also has no authority to bring a claim.
19) Insofar as the visitors parking spaces are concerned, the Claimant is nothing more than a nuisance without any standing at all.
20) Recent cases have set a clear precedence that private parking companies cannot override existing contracts via signage. The Transfer grants the Defendant the right to use the visitor parking spaces without any of the restrictions that the Claimant is attempting to impose. The Defendant refers to the following examples:
a) In the case of Saeed v Plustrade Ltd [2001] EWCA Civ 2011, parking restrictions and a change which caused detriment to tenants/homeowners and their visitors were held to be in breach of the well-known and well-established principle that “a grantor shall not derogate from his grant”.
b) In the case of Jopson v Home Guard Services, appeal case number B9GF0A9E [29/09/2016], it was found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats, and that the parking company could not override the tenant’s existing rights.
c) In the case of Pace Recovery and Storage v Mr N C6GF14F0 [16/09/2016], District Judge Coonan dismissed the claim and refused leave to appeal, having found that a third-party parking firm cannot override the tenant’s right to park by requiring a permit to be displayed in the vehicle. This is based on the well-established legal doctrine that an existing contract cannot be unilaterally altered.
d) In the case of Link Parking v Ms P C7GF50J7 [2016], it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.
21) The signage within the Management Land (as defined by the Transfer and including the visitors parking spaces), which attempts to create contracts with property owners and lessors, includes a roundel stating that the Claimant is a British Parking Association (BPA) Approved Operator. The Defendant has confirmed with the British Parking Association that the Claimant is in fact not a BPA Approved Operator and is not permitted to display such a roundel.
a) The Defendant believes that the Claimant is therefore in breach of the Consumer Protection from Unfair Trading Regulations 2008 (and Amendment 2014).
b) The Defendant believes that the Claimant is using the BPA roundel in an attempt to increase their perceived authority and thus mislead residents and visitors. As such, the Defendant asks that the Court does not assist the Claimant to benefit from a wrongdoing. (Ex turpi causa non oritur actio.)
22) Even if the signage created a valid contract between the Claimant and the Defendant, the Particulars of the Claim indicate a claim of £160 for “parking charges / damages” by the Claimant. The signage on Management Land clearly states the Parking Charge Notice amount is £100, so the Claimant has no basis for demanding £160 for “Parking Charges / Damages”.
a) The Defendant believes that the amount of interest being charged by the Claimant (8%) is entirely unreasonable considering the current Bank of England base rate of 0.5%.
23) The Claimant is a well-known parking operator with wide experience in this field. With such wide experience of parking matters, it is reasonable to expect the Claimant to know that, for a parking scheme to be valid, a contract needs to exist between itself and a person who (a) is either the owner or occupier of the land or authorised under or by virtue of arrangements made by the owner or occupier of the land and (b) has power to override any pre-existing contrary contractual conditions applying to the land.
a) The Claimant has, however, acted negligently by failing to establish the credentials of the other party to its parking contract, whoever that other party may be.
b) If the Claimant had acted with skill, care and diligence, they would have realised that the other party to its contract to manage parking on the relevant land, whoever it may be, is not empowered to enter into such a contract with the Claimant.
c) If the Claimant had acted with skill, care and diligence, they would have detected that the land is subject to pre-existing terms and conditions which have primacy of contract over the Claimant’s fatally flawed arrangements.
24) It is the Defendant’s belief that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.
25) The Defendant request the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/2016, where a similar claim was struck out without a hearing due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.
I believe the facts stated in this Defence Statement are true.
Posted by: Eljayjay Wed, 20 Jun 2018 - 11:35
Post #1392263
Give yourself a pat on the back.
Others may knock it a bit. It does, however, tick all the right boxes in my opinion.
A practical problem may be that it could be too large to copy and paste into MCOL's box. If it is, I would keep back some of the detail, e.g. the case references, for the witness statement.
If I remember rightly, the clock is ticking insofar as getting the defence posted on MCOL is concerned and, if you are going to make a counterclaim, as you need to post both your defence and the counterclaim at the same time, you now need to get cracking on that.
Posted by: nosferatu1001 Wed, 20 Jun 2018 - 12:45
Post #1392293
I wouldnt remove items just to fit into MCOL. It destroys formatting as well, making the defence very hard to read
Just do what everyone does - use a free PDF converter or inbuilt PDF tools (Win10 has this, libreoffice, freepdf etc) -> scan in a signature on VERY white paper, insert the signature, convert to PDF, email to the court. EASY.
Posted by: ManxRed Wed, 20 Jun 2018 - 13:12
Post #1392303
Or in Word.
Insert signature as a pic.
Save As, select drop down box for Filetype, and select PDF.
Posted by: DragonQ Wed, 20 Jun 2018 - 14:20
Post #1392315
I assumed posting the defence online would allow attachments, so I was just gonna attach a PDF to that. I haven't actually checked if that's the case yet. I can only fit about half of that defence in the text box provided (122 lines maximum).
Posted by: nosferatu1001 Wed, 20 Jun 2018 - 14:27
Post #1392317
Given weve told you to email it, you can presume your assumption was incorrect!
Posted by: DragonQ Wed, 20 Jun 2018 - 14:40
Post #1392318
OK, if I email the court using the address listed https://courttribunalfinder.service.gov.uk/courts/county-court-business-centre-ccbc, do I have to also submit the MCOL response form and cite that I've sent an email? Or can I just leave the MCOL now?
Posted by: nosferatu1001 Wed, 20 Jun 2018 - 17:35
Post #1392357
Ignore mcol.
It's the new CCBCAQ email
Posted by: DragonQ Thu, 28 Jun 2018 - 16:50
Post #1394562
OK I'm going to send the following email tomorrow unless anyone has any further suggestions:
QUOTE
To whom it may concern,
Please find attached my Defence for the county court case no. <number>, issued on DATE. Please note the following:
- I served an Acknowledgement of Service via Money Claim Online (MCOL) on DATE.
- I intend to defend all of this claim.
- I am sending my Defence via email due to it being longer than the MCOL form allows for.
Please reply acknowledging receipt of my Defence for this case.
Yours faithfully,
<name>
The defence currently looks like this:
QUOTE
IN THE COUNTY COURT CASE No. BLAH BETWEEN
UK Car Park Management Limited
and
BLAH
________________________
DEFENCE
________________________
Preliminary
1) The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.
1.1) The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details, nor even checking for a true cause of action. HMCS have identified thousands of similar poorly pleaded claims.
1.2) The Defendant believes the term for such conduct is “robo-claims” which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.
2) The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.
2.1) The Defendant further notes the Claimant’s failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.
2.2) The Defendant undertook to appeal the unwarranted parking charge in all good faith, in the hope of resolving the dispute. The Claimant responded to the appeal by mostly ignoring the points made and instead re-asserting the supposed breach of terms by the Defendant. The Claimant never provided the Defendant with the contact details of the Independent Appeals Service (IAS), despite clearly stating they would do so in the original Parking Charge Notice.
2.3) The Defendant has discovered that the Claimant’s Trade Body, the Independent Parking Committee (IPC), is an organisation operated by the same Directors as are/were recorded at Gladstones Solicitors, at least until very recently (they have resigned since the Claimant’s parking charge was issued). They - John Davies and Will Hurley - are also responsible for the Independent Appeals Service, an organisation with no scrutiny board and, evidently, no independence from the IPC or its members.
2.4) Now the Defendant notes that Gladstones are employed in bringing this claim, demonstrating a clear conflict of interests.
Background
3) It is admitted that the Defendant is the registered keeper of the vehicle in question.
4) The Defendant acknowledges that the alleged parking contravention is in reference to an occasion whereby the Defendant’s vehicle was parked in a visitors residential parking space at the home address of the Defendant.
5) The Defendant denies any amount is owed to the Claimant in relation to the incident described in the Particulars of Claim, or any other occasion where the Defendant’s vehicle is parked in a visitors residential parking space at the home address of the Defendant.
Authority to Park and Primacy of Contract
6) The Defendant contends he has not entered a contract with the Claimant and so cannot be in breach of any terms.
7) In the Property Title owned by the Defendant, it is stated that “the land has the benefit of the rights granted by but is subject to the rights reserved by the Transfer referred to in the Charges Register” (hereby referred to as “the Transfer”). This case relates to land where the Defendant’s rights are governed by the Transfer (hereby referred to as “Management Land”).
8) The Transfer grants certain rights to the Defendant as the property owner, including the right to use any visitors parking space in the vicinity of the property for the temporary parking of private motor vehicles not exceeding three tonnes gross laden weight.
8.1) The Defendant is, therefore, fully entitled to use the visitors parking spaces and, when the vehicle was parked in one of them on DATE, it was parked in full compliance with the Transfer without any parking charge being due.
9) The Defendant avers that the Claimant has chosen to blatantly disregard the existence of the Transfer and the rights granted to the Defendant under it. The Claimant cannot
(i) override the existing rights enjoyed by residents and their visitors, or
(ii) offer parking on more onerous terms than were already granted and agreed in the Transfer, or
(iii) decide to remove parking bays from use by residents and/or start charging for them.
10) The Defendant is further protected against the Claimant’s unauthorised and predatory parking scheme by
(i) the Claimant’s lack of any third-party rights in relation to the Transfer, and
(ii) the legal principle of non-derogation from grant implied in all such documents, and
(iii) the legal principle of the right to quiet enjoyment also implied in all such documents.
11) The Defendant will rely on several recent judgements that have set a clear precedent that private parking companies cannot override existing contracts via signage: Saeed v Plustrade Ltd [2001] EWCA Civ 2011; Jopson v Home Guard Services, appeal case number B9GF0A9E [29/09/2016]; Pace Recovery and Storage v Mr N C6GF14F0 [16/09/2016]; and Link Parking v Ms P C7GF50J7 [2016]. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.
No Contract and No Breach
12) Insofar as the visitors parking spaces are concerned, the intention of the Transfer was to provide the Defendant (and other Transferees, i.e. residents) with rights to use those spaces.
13) It is perverse that the Claimant should seek to manage parking in the private car park by making parking available to the general public (albeit at exorbitant cost).
14) There is nothing in the Transfer or elsewhere which compels the Defendant to enter into a contract with the Claimant, who is a stranger to the Transfer, for parking in the visitors parking spaces.
15) The Claimant cannot derive any right to use the visitors parking spaces for the purposes of its business from any of the parties to the Transfers.
15.1) It follows that the Claimant has no parking to offer and, for the purposes of a contract, the Claimant lacks consideration.
15.2) In turn, it follows that the Claimant has no grounds for charging the Defendant for the use of the visitors parking spaces: they do not own the Management Land where the vehicle was parked, nor do they have any interest in the Management Land, and thus they lack the capacity to offer parking. The Claimant has no authority to bring a claim.
15.3) Insofar as the visitors parking spaces are concerned, the Claimant is nothing more than a nuisance without any standing at all.
In the Alternative: Negligence
16) The signage within the Management Land, which attempts to create contracts with property owners and lessors, includes a roundel stating that the Claimant is a British Parking Association (BPA) Approved Operator. The Defendant has confirmed with the BPA that the Claimant is in fact not a BPA Approved Operator and is not permitted to display such a roundel.
16.1) The Defendant believes that the Claimant is therefore in breach of the Consumer Protection from Unfair Trading Regulations 2008 (and Amendment 2014).
16.2) The Defendant believes that the Claimant is using the BPA roundel in an attempt to increase their perceived authority and thus mislead residents and visitors. As such, the Defendant asks that the Court does not assist the Claimant to benefit from a wrongdoing. (Ex turpi causa non oritur actio.)
17) Even if the signage created a valid contract between the Claimant and the Defendant, the Particulars of the Claim indicate a claim of £yyy for “parking charges / damages” by the Claimant. The signage on Management Land clearly states the Parking Charge Notice amount is £xxx, so the Claimant has no basis for demanding £yyy for “Parking Charges / Damages”.
17.1) The Defendant believes that the amount of interest being charged by the Claimant (z%) is entirely unreasonable considering the current Bank of England base rate of 0.5%.
18) The Claimant is a well-known parking operator with wide experience in this field, so it is reasonable to expect the Claimant to know that, for a parking scheme to be valid, a contract needs to exist between itself and a person who
(i) is either the owner or occupier of the land or authorised under or by virtue of arrangements made by the owner or occupier of the land, and
(ii) has power to override any pre-existing contrary contractual conditions applying to the land.
18.1) The Claimant has, however, acted negligently by failing to establish the credentials of the other party to its (presumedly existent) contract to manage parking on the Management Land, whoever that other party may be.
18.2) If the Claimant had acted with skill, care and diligence, they would have realised that the other party to its (presumedly existent) parking contract, whoever it may be, is not empowered to enter into such a contract with the Claimant.
18.3) If the Claimant had acted with skill, care and diligence, they would have detected that the Management Land is subject to pre-existing terms and conditions which have primacy of contract over the Claimant’s fatally flawed arrangements.
19) The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. In fact, the existing rights of residents should have been protected.
Wholly Unreasonable and Vexatious Claim
20) It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).
21) It is the Defendant’s belief that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.
22) The Court is invited to take Judicial Notice of the fact that the Claimant’s solicitor, Gladstones, is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).
23) The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success. The Court is also invited to consider reasons cited by District Judge Cross of St Albans County Court on 20/09/2016, where a similar claim was struck out without a hearing due to Gladstones’ template particulars for a private parking firm being ‘incoherent’, failing to comply with CPR 16.4, and ‘‘providing no facts that could give rise to any apparent claim in law’’.
24) If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.
I confirm the facts stated in this Defence are true to the best of my knowledge.
NAME
Posted by: Eljayjay Thu, 28 Jun 2018 - 17:58
Post #1394574
It seems good to go to me.
Posted by: nosferatu1001 Fri, 29 Jun 2018 - 03:46
Post #1394631
Needs a real signature remember. Scan to a jpeg and attach to the document, then covert it all to pdf.
Posted by: DragonQ Sat, 30 Jun 2018 - 10:19
Post #1394975
Actually the https://www.justice.gov.uk/courts/email-guidance says a "real" signature isn't required, but I did put one in. I sent it as a PDF attachment and asked for a receipt to acknowledge they've received it but I am not sure if they'll do that.
Posted by: ostell Sat, 30 Jun 2018 - 11:50
Post #1395001
"real signature" as against "copy of signature" Easy to add a signature to a Word document or a PDF document. As long as you follow the guidance for the Subject of the email.
You would normally get an auto acknowledgement that the email has been received. If not then check with the court.
Posted by: DragonQ Sat, 30 Jun 2018 - 13:54
Post #1395039
Yep all done, got an automated response for it.
Posted by: DragonQ Fri, 13 Jul 2018 - 16:57
Post #1398743
I have received a copy of the Directions Questionnaire from Gladstones. The highlights:
- They're going to request a special direction for the case to be dealt with on the papers without an oral hearing;
- They have elected not to mediate, yet are happy to listen to payment proposals (lol).
Do I have to do anything about this aside from keep it for my records? I assume I will also receive a Directions Questionnaire to fill out at some point?
Posted by: Redivi Fri, 13 Jul 2018 - 17:03
Post #1398748
Standard Gladstones response to a defence
Search box in the top right corner : "reasonably straightforward"
You will find some threads with appropriate letters to enclose with your Directions Questionnaire :
You will refuse to consent to a paper hearing
You want the hearing at your local court in accordance with the Practice Direction when the Defendant is an individual
You want in particular to question the Claimant about....
Posted by: DragonQ Fri, 13 Jul 2018 - 17:18
Post #1398759
So I am expected to just fill out the Directions Questionnaire without being prompted by the court?
Posted by: Redivi Fri, 13 Jul 2018 - 17:34
Post #1398765
The court will send you the DQ to complete when it receives Gladstones reply but you can take control by downloading the form now
Posted by: DragonQ Fri, 13 Jul 2018 - 17:42
Post #1398767
OK I have downloaded and filled in the DQ. Should I send a copy to Gladstones and then email it to the court with a cover letter, or should I wait until the court confirms that they've received the DQ from Gladstones? I've put this in D1:
QUOTE
If the claim is not struck out for failure to comply with CPR 16.4 & PD 16 7.3-7.5 as disclosing no meaningful particulars, the Defendant opposes the Claimant's request for special direction and requests the case is transferred to his local court in accordance with CPR 26.2A(3).
Posted by: Eljayjay Fri, 13 Jul 2018 - 17:50
Post #1398770
Here are some notes on completing a DQ (N180) which I prepared for someone else about four weeks ago just in case you want to check your entries against them.
Most of it will apply to you, but some of it will depend on what the Claimant and/or its solicitors have to say.
You need to download a form N180 from https://www.gov.uk/government/publications/...ll-claims-track
Where it says "In the" at the top, enter Northampton CCBC.
Obviously, enter the case number and your name in the relevant boxes.
Where it says "who is", leave 1st and Defendant showing.
Tick No where it says:-
Do you agree to this case being referred to the
Small Claims Mediation Service?
Complete the Your Contact Details section
Tick Yes where it says:-
Do you agree that the small claims track is the appropriate track for
this case?
At D1, enter the name of the court where you wish the case to be heard and the words "I am an unrepresented defendant and this is the most convenient court for me."
At D2, tick No.
At D3, enter a number - it will be at least 1 because you count as a witness for this purpose.
Complete D4 as appropriate.
So, if you and/or a witness have booked some holidays, tick Yes
and give the dates.
If you book some holidays later, advise the court to which the case will be allocated. Avoid the hearing date if it has been set by then.
Tick No where it says:-
Will you be using an interpreter at the hearing either for yourself or
for a witness?
In the space at the bottom of the page, write:
PLEASE NOTE THAT
I DO NOT AGREE THAT THE CASE SHOULD BE HEARD ON THE PAPERS ALONE.
Sign the form in the box.
Below the box, lease 1st and Defendant showing.
Scan the whole form.
If you do not know CCBC's email address, phone them and ask for the email address to which a Directions Questionnaire form N180 should be sent.
Attach it to an email to CCBC and copy it to the Claimant's solicitors or, if they have no solicitors acting for them, to the Claimant itself. The email should be headed "Directions Questionnaire: Case No. <case number> and read as follows:-
Claim No. <case number>
Issue Date <date of claim>
Claimant <name of claimant>
Claimant’s reference <ppm's ref>
Defendant <your name>
Dear CCBC,
As you will see, I am sending this email not only to yourselves but also to the <claimant or claimant's solicitors>.
As requested, I attach the Directions Questionnaire (N180) duly completed by myself.
[Use this sentence if appropriate] Given that the <claimant or claimant's solicitors> <has or have> requested that the claim should be dealt with on the paper alone, I would ask you to note that I do not agree to this request.
I look forward to hearing from you again in due course.
Yours faithfully,
<your name>
Posted by: DragonQ Tue, 24 Jul 2018 - 15:32
Post #1401952
Received "Notice of Transfer of Proceedings" today, the claim has been transferred to my local court. Waiting for judge's directions now.
Posted by: Eljayjay Tue, 24 Jul 2018 - 15:51
Post #1401959
The hearing will probably not take place for months.
In the meantime, you need to prepare your witness statement and exhibits.
You may also wish to prepare a statement of legal arguments.
Obviously, do ask if you get stuck.
Posted by: DragonQ Sun, 19 Aug 2018 - 10:31
Post #1409269
OK so I have a couple of weeks to prepare a witness statement and sort out the documents. I will start writing it tomorrow but can anyone advise what should actually be in it? My defence statement was quite detailed to begin with but should I simply take my defence and expand on it? Or is it pointless to repeat anything that was in the defence?
Posted by: ostell Sun, 19 Aug 2018 - 11:33
Post #1409290
Tell the stroy in your point of view, in chronological order and take the chance to mention and include as exhibits additional documents.
Posted by: Redivi Sun, 19 Aug 2018 - 12:32
Post #1409306
Wait as long as you can to submit it without missing the deadline
That gives you the chance to add a section :
I also dispute the following points in the Claimant's witness statement :
1 In Para A the Claimant states X
In fact Y
2 In Para B the Claimant states ....
Etc
Posted by: Eljayjay Sun, 19 Aug 2018 - 15:42
Post #1409344
Wow! That is quick. When is the hearing? Given that you have only a couple of weeks to prepare your bundle of witness statement and exhibits, I imaging in roughly a month's time.
I like your defence (and not just because of my contribution to it). You now need to add to it by stating what you have seen, heard, read and so on to support the points made in it.
You need to quote from the Transfer document, and you need to quote from the transcripts of the cases which you have cited.
Your main exhibit will be the Transfer document but do include anything else, e.g. photographs and past correspondence, which supports your case.
On the day of the hearing, dress smartly and take along three copies of the transcripts of any cases which you have cited: one for you; one for the Judge; and one for the Claimant.
It is best that you compose your own witness statement; however, if you do need any help, do not hesitate to ask for it.
So, for instance, if there is anything in your defence that you do not fully understand, read up on it and/or ask here.
Posted by: DragonQ Sun, 19 Aug 2018 - 19:31
Post #1409387
There is no set hearing date yet, just a deadline to submit witness statements and evidence documents.
I'll have a go at drafting a witness statement tomorrow. Does it have to be in the third person like the defence?
Posted by: ostell Sun, 19 Aug 2018 - 21:01
Post #1409401
The submission date is usually 14 days before the hearing date. Are you sure you have not misinterpreted?
Posted by: Eljayjay Sun, 19 Aug 2018 - 21:28
Post #1409408
Thankfully, the answer to your question "Does it have to be in the third person like the defence?" is "no".
I recently drafted a witness statement for karenep. Although her case is not exactly the same as yours, it might give you some ideas. karenep was pleased.
Posted by: nosferatu1001 Mon, 20 Aug 2018 - 07:50
Post #1409468
A witness statement is a series of FACTs
On such and such date I was the keeper of vehicle XYZ
On y date I bought the leasehold of property ABC which came with parking space NN
It is not a repetition of your defence, but ovbviously if you raised in your defence that you are not liable because... then it would be helpful to point out, in your *evidence*, how you prove your argument is true.
Posted by: DragonQ Mon, 20 Aug 2018 - 08:16
Post #1409475
QUOTE (ostell @ Sun, 19 Aug 2018 - 21:01)
The submission date is usually 14 days before the hearing date. Are you sure you have not misinterpreted?
Pretty sure it doesn't say an exact date. It says:
QUOTE
The hearing of the claim will take place on a date to be fixed by the court, time estimate 90 minutes.
Posted by: ostell Mon, 20 Aug 2018 - 08:50
Post #1409482
So they are asking for a witness statement by a given date even though there is no date date given for the hearing?
The reason for submitting as close to the deadline as possible is that it doesn't give the other side a chance to see your WS and respond with a WS that refutes some of your statements.
Posted by: Redivi Mon, 20 Aug 2018 - 09:19
Post #1409492
Wonder if this is a smart judge familiar with Gladstones who isn't going to let them get away with submitting documents at the last minute
If Gladstones fails to meet the deadline, how about immediately contacting the Court and inviting it to strike out the claim ?
It probably won't
For some reason "professionals" are given a lot more leeway with missed deadlines than litigants in person but does no harm to remind when a court order has been ignored
Posted by: DragonQ Mon, 20 Aug 2018 - 18:27
Post #1409645
QUOTE (ostell @ Mon, 20 Aug 2018 - 08:50)
So they are asking for a witness statement by a given date even though there is no date date given for the hearing?
Correct.
QUOTE (Redivi @ Mon, 20 Aug 2018 - 09:19)
Wonder if this is a smart judge familiar with Gladstones who isn't going to let them get away with submitting documents at the last minute
If Gladstones fails to meet the deadline, how about immediately contacting the Court and inviting it to strike out the claim ?
It probably won't
For some reason "professionals" are given a lot more leeway with missed deadlines than litigants in person but does no harm to remind when a court order has been ignored
Yeah, I plan to email Gladstones and the court on the final day and will definitely ask the court to strike out the claim if Gladstones don't fulfil their obligations (i.e. send me their witness statement).
Posted by: nosferatu1001 Mon, 20 Aug 2018 - 22:11
Post #1409724
You do not email the court!
No one ever does
You hand deliver your lovely witness statement and evidence all neatly bound referenced and divided up so it's easy
You can do this before you serve it on the claimant and
Posted by: DragonQ Fri, 24 Aug 2018 - 17:18
Post #1410927
Here is what I have for a first draft of the witness statement. Ignore the formatting but any thoughts on stuff I should remove or add? What about the order of the paragraphs? Also I think I've redacted everything important but please let me know if I've let something slip through!
QUOTE
IN THE COUNTY COURT CASE No. BLAH BETWEEN
UK Car Park Management Limited
and
BLAH
________________________
WITNESS STATEMENT
________________________
1) I am an unrepresented consumer who has never attended the county court before.
Sequence of Events
2) I was the keeper of the vehicle in question (registration BLAH) on BLAH. On that date it was parked in a visitor bay on the BLAH estate.
3) I received a parking charge notice (reference: BLAH) on BLAH (Exhibit A). This parking charge notice alleges the vehicle in question was “parked in a manner whereby the driver became liable for a parking charge” on BLAH. The reason given for issuing the parking charge notice is stated as “not displaying a valid permit”.
3.1) The parking charge notice was delivered by post to my home address of BLAH indicating that the Claimant is aware that I am a resident of the BLAH estate, where the alleged breaching of terms of parking took place.
4) On BLAH, I wrote a response letter appealing the charge (Exhibit B). In it, I made it very clear that I did not believe the Claimant had any right to charge me for parking in a visitor bay.
5) On BLAH I received a response to my appeal (Exhibit C). In it, the Claimant
(i) attempts to rebut an argument I did not make by stating that my letter claimed “that UK Car Park Management are using [my] allocated bay for [their] own business purposes”. I, in fact, used the term “my allocated car parking areas”, which includes visitor bays since all residents of the estate are entitled to use them;
(ii) admits that “parking conditions are in place to stop unauthorised parking”, in other words, the Claimant is there to help the residents of BLAH, including myself, by deterring non-residents from parking in the estate. Charging residents for parking in bays they are entitled to use is completely detrimental to this objective;
(iii) claims that they “hold a legal contract that authorises [their] enforcement officers to monitor and maintain parking areas on behalf of the landowner”. I have yet to see evidence of this contract but it cannot override my contract with the landowner that grants me the right to use the visitor parking bays;
(iv) does not explicitly state whether my appeal was accepted or rejected.
6) On BLAH I replied to the appeal response (Exhibit D). In it, I:
(i) re-affirm that I was referring to visitor bays in my original appeal letter;
(ii) rebut their assertion that a valid permit must be displayed by re-stating that my property deeds grant me the unfettered rights to the use of the communal areas and parking facilities;
(iii) question their actual appeal decision since they did not state the appeal outcome nor what they expected from me in their appeal response letter dated BLAH. Specifically, I asked “please can you clarify whether you are intending to continue pursuing the parking charge”.
7) I did not receive a reply to my letter dated BLAH.
8) On BLAH I attended the Management Company’s Annual General Meeting, as did two representatives of the Claimant. Here:
(i) the Claimant’s representatives admitted that the presence of the Claimant on the land is to prevent parking by uninvited persons, for the benefit of the actual freeholders/leaseholders and their invited guests. This confirms what I alleged in my appeal letter dated BLAH;
(ii) I raised concerned about residents being penalised for parking in spaces they are entitled to use. The Claimant’s representatives replied their appeals process would allow those with actual rights to park on Management Land to have any parking charges wiped. This has proven to be untrue, as evidenced by the existence of this claim.
9) On BLAH, I received a letter from Debt Recovery Plus Ltd demanding payment (Exhibit E). In it, they claim that there had been “no response following correspondence sent to [my] address”. This is clearly not true given the existence of Exhibits B & C.
10) On BLAH, I received a letter from Gladstones Solicitors (Exhibit F), again demanding payment and threatening court action. In it, they state the Supreme Court case of Beavis v Parking Eye [2015] confirmed “the lawfulness of charges based in contract”.
10.1) The fact that they cite an irrelevant court case (see Paragraph 25 for an explanation as to why) is further evidence of the “robo-claim” nature of Gladstones’ debt collection practice: they do not understand the nature of the case they are pursuing and are just trying to scare consumers into paying charges for which they are not liable.
11) On BLAH, I received a Letter Before Claim from Gladstones Solicitors (Exhibit G). My initial reaction was that the Letter Before Claim (“LBC”) was not compliant with the Pre-Action Protocol for Debt Claims (“the PAP”) because it did not include:
i) “the claimant’s full name and address”;
ii) “the basis on which the claim is made”;
iii) “a clear summary of the facts on which the claim is based”;
iv) “an explanation of how the amount [claimed] has been calculated”;
v) a “list of the essential documents on which the claimant intends to rely”;
vi) a request “for copies of any relevant documents not in the claimant's possession and which the claimant wishes to see”.
All of the above particulars are required in an LBC according to Annex A Section 2 of the Practice Direction Pre-Action Conduct.
12) On BLAH I replied to the LBC (Exhibit H). Believing the LBC was not compliant with the PAP, I very specifically asked Gladstones to:
i) explain why they have not complied with the [Practice Direction];
ii) send a new LBC that does comply with the [Practice Direction] so that I can then comply with my obligations under the [Practice Direction];
iii) ensure they responded to my actual letter rather than using a generic template.
13) On BLAH, I received a reply to my LBC response (Exhibit I). In it, they simply note my response, include a copy of previous correspondence between myself and the Claimant, and, against my wishes, attempted to answer my questions by including a generic set of FAQs.
13.1) As far as I was concerned, they had ignored my wishes and failed to send a compliant LBC. On BLAH, I sent a simple letter (Exhibit J) demanding that, if Gladstones intended to begin court proceedings, they:
i) state this clearly in writing;
ii) send me paper version of the PAP documents so that I can make a full response.
13.2) I did not receive a reply to my letter dated BLAH.
14) On BLAH, I received the Claim Form for this claim.
14.1) On BLAH, I acknowledged receipt of the claim form online.
14.2) On BLAH, I sent my Defence to the County Court Business Centre via email.
14.3) On BLAH, I received a letter from the court acknowledging receipt of my Defence.
15) On BLAH, I received a letter from Gladstones Solicitors (Exhibit K) enclosed with the Claimant’s completed Directions Questionnaire. This includes two important special direction requests:
i) that the case be dealt with on the papers without an oral hearing. This is a common tactic of Gladstones because it allows them to file legal points in their witness statement at the last moment, not giving the defendant a chance to reply;
ii) that if I do not agree to a paper hearing, the oral hearing take place at their local court. This is directly contrary to Civil Procedures Rules 26.2A(3), which states that as I, the defendant, am an individual, the claim must be sent to my home court. Since I am sure Gladstones are aware of this rule, I am convinced this special direction exists purely to make life more difficult for unrepresented consumers in an effort to convince them to settle the claim.
16) On BLAH, I sent a reply to Gladstones explaining that I did not consent to either of their special direction preferences (Exhibit L). I enclosed my own completed Directions Questionnaire, opposing the Claimant’s special direction request.
16.1) I also emailed the court my completed Directions Questionnaire on BLAH.
Property Title and Transfer
17) On BLAH, I completed the purchase of my current residence (BLAH).
18) Within my Property Title (Exhibit M), it is stated that “the land has the benefit of the rights granted by but is subject to the rights reserved by the Transfer dated BLAH referred to in the Charges Register” (hereby referred to as “the Transfer”). This case relates to land where the Defendant’s rights are governed by the Transfer (hereby referred to as “Management Land”).
19) Within the Transfer (Exhibit N), I am granted the unequivocal right to use the visitors’ parking spaces on the Management Company owned land, as described in Schedule 1 Clause 10:
“The rights for the purchaser and all persons authorised by it…to the use in common with all others entitled to a like right on a first come first served basis any Visitors Parking Space in the vicinity of the Property for the temporary parking of private motor vehicles not exceeding three tonnes gross laden weight.”
19.1) The only other restriction on the above rights listed in The Transfer is that vehicles must be of a certain type (Schedule 4 Clause 8):
“Not to park any heavy or light goods or commercial vehicle caravan boat trailer or similar type of vehicle on the Property any Shared Accessways any Adoptable Roads the Management Land or any other part of the Development except (where access is possible) in the case of a caravan boat trailer or similar type of vehicle only within the back garden of the dwelling on the Property.”
19.2) The Transfer does not contain any parking restrictions pertaining to permits or charges. It also does not grant any rights to the Management Company or any other party pertaining to parking restrictions or charges and has no provision for a third party to alter the Transfer in any way.
20) No evidence has been provided to show that the Claimant has any interest in the land on which the vehicle was parked. Thus, as far as I am aware, they lack the capacity to offer parking and have no authority to bring a claim.
20.1) Even if the Claimant does have a contract with the Management Company or landowner to enforce parking restrictions such as charges or requirements to display permits, such a contract cannot remove or override the rights granted to me in the Transfer due to Primacy of Contract. Any contract the Claimant avers to exist due to the signage around the Management Land is irrelevant for the same reason.
20.2) The Claimant is not a party to the Transfer. Even if the landowner retains the right to alter the Transfer to allow the Claimant to enforce parking restrictions, this has not occurred.
21) Recent cases have set a clear precedence that private parking companies cannot override existing contracts via signage. Should the Claimant rely on signage or a contract with the Management Company to enforce parking restrictions as evidence of a charge being due, I believe the following cases are directly relevant to this claim.
21.1) In Pace Recovery and Storage v Mr N [2016] C6GF14F0 [2016], District Judge Coonan dismissed the claim, stating:
“I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.”
In other words, a third-party parking firm cannot override the tenant’s right to park by requiring a permit to be displayed in the vehicle. This is based on the well-established legal doctrine that an existing contract cannot be unilaterally altered. The Transfer grants me similar rights to Mr N’s tenancy agreement and the Claimant cannot unilaterally alter them.
21.2) In Link Parking v Ms P C7GF50J7 [2016], the judge referred to Pace v Mr N. (above), ruling that:
“the Judge in that case found that the parking company could not amend the terms of the tenancy agreement to bind a tenant, but rather that it would have to be the other party to the contract, and it seems to me that the same principle applies here.”
The Claimant has no right to amend my contract with the landowner or Management Company, and the Management Company and landowner have not made any attempt to amend the terms of the Transfer.
21.3) In Saeed v Plustrade Ltd [2001] EWCA Civ 2011, three Supreme Court Justices upheld the original judgement, which stated that:
“…the scheme now sought to be instituted by the defendants whereby the claimant is restricted to parking on only four car-parking spaces on the forecourt as it is presently laid out constitutes a substantial interference with her right to park contained in her lease...the defendants substantially interfered with the claimant’s right by depriving her of the right to park…”
In other words, parking restrictions and a change which caused detriment to tenants/homeowners and their visitors were held to be in breach of the well-known and well-established principle that “a grantor shall not derogate from his grant”. The Claimant is interfering with my right to park on Management Land granted by the Transfer by attempting to charge me to park in the Visitor spaces and by putting forward this claim.
21.4) In Jopson v Home Guard Services, appeal case number B9GF0A9E [29/09/2016], Senior Circuit Judge Harris QC overturned the original judgement:
“It therefore seems to me clear that the respondent was not in any position unilaterally to override the right of access which the claimant had bought when she purchased the lease, and that right of access permitted short incidental stops for the purpose of access to her flat...In the circumstances, it is not necessary to deal with arguments about the Unfair Contract Terms, and the factual circumstances are quite different from those in ParkingEye v Beavis [2015] supra. Inter alia, in that case the agreed motorist was not exercising a right ancillary to a right of way...”
The Claimant has no authority to override rights provided by a lease or title. Additionally, ParkingEye v Beavis [2015] is not relevant to residential parking cases because it does not involve a defendant exercising a right.
22) In summary, the case law in this regard is strong: the terms of a tenancy agreement or property title cannot be amended by the displaying of a sign.
22.1) The Particulars of Claim states the Claimant requires a payment for “breaching the terms of parking on the land”. With respect to the case law in paragraph 23, I cannot have entered a valid contract with the Claimant, due to Primacy of Contract, and so cannot be in breach of any terms.
23) Additionally, this case can be distinguished from ParkingEye v Beavis [2015] UKSC 67, which was dependent upon an undenied contract formed by signage forming a clear offer and which turned on unique facts regarding the location and interests of the landowner. Strict compliance with the BPA Code of Practice was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this case.
23.1) In ParkingEye v Beavis [2015] it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other “legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question”. The true test was held to be “whether the impugned provision is a secondary obligation which imposes detriment on the contract-breaker out of all proportion to any legitimate interest […] in enforcement of the primary obligation”
23.2) There can be no “legitimate interest” in penalising residents or their visitors for using parking spaces that they have an unequivocal right to, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is unconscionable, contrary to the requirement of good faith and “out of all proportion to any legitimate interest” to essentially fine residents or their visitors for using allocated parking spaces.
23.3) As further explained in Paragraph 24, the Claimant is not a BPA Approved Operator, so they cannot strictly comply with the Code of Practice in any case.
Other Matters
24) Before BLAH, I notified the British Parking Association (“BPA”) of the Claimant’s unauthorised use of the “BPA roundel” on their signage on the Management Land (seen in Exhibit O).
24.1) On BLAH, I received a response from the BPA (Exhibit P) confirming that, whilst “UK Car Park Management Ltd are a corporate member of the BPA…they are not part of the BPA Approved Operator Scheme (AOS)”, and that “only BPA AOS members can use the BPA AOS Roundel”.
24.2) On BLAH, I noticed that the Claimant had removed the BPA roundel from their signage (Exhibit Q), presumably after being instructed to do by the BPA.
24.3) I am of the opinion that the Claimant used the BPA roundel without authorisation in an attempt to increase their perceived authority, and thus mislead residents and visitors. I also believe that the Claimant was therefore in breach of the Consumer Protection from Unfair Trading Regulations 2008 (and Amendment 2014) at the time of the alleged parking infringement.
I believe the facts contained in my witness statement are true.
Posted by: nosferatu1001 Sun, 26 Aug 2018 - 23:21
Post #1411411
Why remove dates?
They're useful.
R emove 1
14 is useless as the court knows this.
15 nd 16 don't have to do with facts about this claim, so doubt their relevance. Certainly 16.1 is irrelevant.
Posted by: DragonQ Mon, 27 Aug 2018 - 11:31
Post #1411494
I redacted the dates because I'd rather not give away who I am to any Gladstones people reading this (although if they took they time I'm sure they'd figure it out anyway).
Posted by: nosferatu1001 Tue, 28 Aug 2018 - 06:55
Post #1411649
They'll see it soon enough, and a simple google search is likely to then find here.
The dates help US to help YOU.
Posted by: DragonQ Tue, 28 Aug 2018 - 10:09
Post #1411695
OK I've re-added the dates below:
QUOTE
IN THE COUNTY COURT CASE No. [redacted] BETWEEN
UK Car Park Management Limited
and
[redacted]
________________________
WITNESS STATEMENT
________________________
Sequence of Events
1) I was the keeper of the vehicle in question (registration [redacted]) on 19th March 2017. On that date it was parked in a visitor bay on the [redacted] estate.
2) I received a parking charge notice (reference: [redacted]) on 20th April 2017 (Exhibit A). This parking charge notice alleges the vehicle in question was “parked in a manner whereby the driver became liable for a parking charge” on 19th March 2017. The reason given for issuing the parking charge notice is stated as “not displaying a valid permit”.
2.1) The parking charge notice was delivered by post to my home address of [redacted] indicating that the Claimant is aware that I am a resident of the [redacted] estate, where the alleged breaching of terms of parking took place.
3) On 5th May 2017, I wrote a response letter appealing the charge (Exhibit B). In it, I made it very clear that I did not believe the Claimant had any right to charge me for parking in a visitor bay.
4) On 19th May 2017 I received a response to my appeal (Exhibit C). In it, the Claimant
(i) attempts to rebut an argument I did not make by stating that my letter claimed “that UK Car Park Management are using [my] allocated bay for [their] own business purposes”. I, in fact, used the term “my allocated car parking areas”, which includes visitor bays since all residents of the estate are entitled to use them;
(ii) admits that “parking conditions are in place to stop unauthorised parking”, in other words, the Claimant is there to help the residents of [redacted], including myself, by deterring non-residents from parking in the estate. Charging residents for parking in bays they are entitled to use is completely detrimental to this objective;
(iii) claims that they “hold a legal contract that authorises [their] enforcement officers to monitor and maintain parking areas on behalf of the landowner”. I have yet to see evidence of this contract but it cannot override my contract with the landowner that grants me the right to use the visitor parking bays;
(iv) does not explicitly state whether my appeal was accepted or rejected.
5) On 30th May 2017 I replied to the appeal response (Exhibit D). In it, I:
(i) re-affirm that I was referring to visitor bays in my original appeal letter;
(ii) rebut their assertion that a valid permit must be displayed by re-stating that my property deeds grant me the unfettered rights to the use of the communal areas and parking facilities;
(iii) question their actual appeal decision since they did not state the appeal outcome nor what they expected from me in their appeal response letter dated 19th May 2017. Specifically, I asked “please can you clarify whether you are intending to continue pursuing the parking charge”.
6) I did not receive a reply to my letter dated 30th May 2017.
7) On 30th June 2017 I attended the Management Company’s Annual General Meeting, as did two representatives of the Claimant. Here:
(i) the Claimant’s representatives admitted that the presence of the Claimant on the land is to prevent parking by uninvited persons, for the benefit of the actual freeholders/leaseholders and their invited guests. This confirms what I alleged in my appeal letter dated 5th May 2017;
(ii) I raised concerned about residents being penalised for parking in spaces they are entitled to use. The Claimant’s representatives replied their appeals process would allow those with actual rights to park on Management Land to have any parking charges wiped. This has proven to be untrue, as evidenced by the existence of this claim.
8) On 12th July 2017, I received a letter from Debt Recovery Plus Ltd demanding payment (Exhibit E). In it, they claim that there had been “no response following correspondence sent to [my] address”. This is clearly not true given the existence of Exhibits B & C.
9) On 22th August 2017, I received a letter from Gladstones Solicitors (Exhibit F), again demanding payment and threatening court action. In it, they state the Supreme Court case of Beavis v Parking Eye [2015] confirmed “the lawfulness of charges based in contract”.
9.1) The fact that they cite an irrelevant court case (see Paragraph 25 for an explanation as to why) is further evidence of the “robo-claim” nature of Gladstones’ debt collection practice: they do not understand the nature of the case they are pursuing and are just trying to scare consumers into paying charges for which they are not liable.
10) On 4th January 2018, I received a Letter Before Claim from Gladstones Solicitors (Exhibit G). My initial reaction was that the Letter Before Claim (“LBC”) was not compliant with the Pre-Action Protocol for Debt Claims (“the PAP”) because it did not include:
i) “the claimant’s full name and address”;
ii) “the basis on which the claim is made”;
iii) “a clear summary of the facts on which the claim is based”;
iv) “an explanation of how the amount [claimed] has been calculated”;
v) a “list of the essential documents on which the claimant intends to rely”;
vi) a request “for copies of any relevant documents not in the claimant's possession and which the claimant wishes to see”.
All of the above particulars are required in an LBC according to Annex A Section 2 of the Practice Direction Pre-Action Conduct.
11) On 14 January 2018 I replied to the LBC (Exhibit H). Believing the LBC was not compliant with the PAP, I very specifically asked Gladstones to:
i) explain why they have not complied with the [Practice Direction];
ii) send a new LBC that does comply with the [Practice Direction] so that I can then comply with my obligations under the [Practice Direction];
iii) ensure they responded to my actual letter rather than using a generic template.
12) On 15th February 2018, I received a reply to my LBC response (Exhibit I). In it, they simply note my response, include a copy of previous correspondence between myself and the Claimant, and, against my wishes, attempted to answer my questions by including a generic set of FAQs.
12.1) As far as I was concerned, they had ignored my wishes and failed to send a compliant LBC. On 6th March 2018, I sent a simple letter (Exhibit J) demanding that, if Gladstones intended to begin court proceedings, they:
i) state this clearly in writing;
ii) send me paper version of the PAP documents so that I can make a full response.
12.2) I did not receive a reply to my letter dated 6th March 2018.
13) On 11th July 2018, I received a letter from Gladstones Solicitors (Exhibit K) enclosed with the Claimant’s completed Directions Questionnaire. This includes two important special direction requests:
i) that the case be dealt with on the papers without an oral hearing. This is a common tactic of Gladstones because it allows them to file legal points in their witness statement at the last moment, not giving the defendant a chance to reply;
ii) that if I do not agree to a paper hearing, the oral hearing take place at their local court.
13.1) This is directly contrary to Civil Procedures Rules 26.2A(3), which states that as I, the defendant, am an individual, the claim must be sent to my home court. Since I am sure Gladstones are aware of this rule, I am convinced this special direction exists purely to make life more difficult for unrepresented consumers in an effort to convince them to settle the claim.
Property Title and Transfer
14) On 17th June 2016, I completed the purchase of my current residence ([redacted]).
15) Within my Property Title (Exhibit M), it is stated that “the land has the benefit of the rights granted by but is subject to the rights reserved by the Transfer dated 9 February 2007 referred to in the Charges Register” (hereby referred to as “the Transfer”). This case relates to land where the Defendant’s rights are governed by the Transfer (hereby referred to as “Management Land”).
16) Within the Transfer (Exhibit N), I am granted the unequivocal right to use the visitors’ parking spaces on the Management Company owned land, as described in Schedule 1 Clause 10:
“The rights for the purchaser and all persons authorised by it…to the use in common with all others entitled to a like right on a first come first served basis any Visitors Parking Space in the vicinity of the Property for the temporary parking of private motor vehicles not exceeding three tonnes gross laden weight.”
16.1) The only other restriction on the above rights listed in The Transfer is that vehicles must be of a certain type (Schedule 4 Clause 8):
“Not to park any heavy or light goods or commercial vehicle caravan boat trailer or similar type of vehicle on the Property any Shared Accessways any Adoptable Roads the Management Land or any other part of the Development except (where access is possible) in the case of a caravan boat trailer or similar type of vehicle only within the back garden of the dwelling on the Property.”
16.2) The Transfer does not contain any parking restrictions pertaining to permits or charges. It also does not grant any rights to the Management Company or any other party pertaining to parking restrictions or charges and has no provision for a third party to alter the Transfer in any way.
17) No evidence has been provided to show that the Claimant has any interest in the land on which the vehicle was parked. Thus, as far as I am aware, they lack the capacity to offer parking and have no authority to bring a claim.
17.1) Even if the Claimant does have a contract with the Management Company or landowner to enforce parking restrictions such as charges or requirements to display permits, such a contract cannot remove or override the rights granted to me in the Transfer due to Primacy of Contract. Any contract the Claimant avers to exist due to the signage around the Management Land is irrelevant for the same reason.
17.2) The Claimant is not a party to the Transfer. Even if the landowner retains the right to alter the Transfer to allow the Claimant to enforce parking restrictions, this has not occurred.
18) Recent cases have set a clear precedence that private parking companies cannot override existing contracts via signage. Should the Claimant rely on signage or a contract with the Management Company to enforce parking restrictions as evidence of a charge being due, I believe the following cases are directly relevant to this claim.
18.1) In Pace Recovery and Storage v Mr N [2016] C6GF14F0 [2016], District Judge Coonan dismissed the claim, stating:
“I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.”
In other words, a third-party parking firm cannot override the tenant’s right to park by requiring a permit to be displayed in the vehicle. This is based on the well-established legal doctrine that an existing contract cannot be unilaterally altered. The Transfer grants me similar rights to Mr N’s tenancy agreement and the Claimant cannot unilaterally alter them.
18.2) In Link Parking v Ms P C7GF50J7 [2016], the judge referred to Pace v Mr N. (above), ruling that:
“the Judge in that case found that the parking company could not amend the terms of the tenancy agreement to bind a tenant, but rather that it would have to be the other party to the contract, and it seems to me that the same principle applies here.”
The Claimant has no right to amend my contract with the landowner or Management Company, and the Management Company and landowner have not made any attempt to amend the terms of the Transfer.
18.3) In Saeed v Plustrade Ltd [2001] EWCA Civ 2011, three Supreme Court Justices upheld the original judgement, which stated that:
“…the scheme now sought to be instituted by the defendants whereby the claimant is restricted to parking on only four car-parking spaces on the forecourt as it is presently laid out constitutes a substantial interference with her right to park contained in her lease...the defendants substantially interfered with the claimant’s right by depriving her of the right to park…”
In other words, parking restrictions and a change which caused detriment to tenants/homeowners and their visitors were held to be in breach of the well-known and well-established principle that “a grantor shall not derogate from his grant”. The Claimant is interfering with my right to park on Management Land granted by the Transfer by attempting to charge me to park in the Visitor spaces and by putting forward this claim.
18.4) In Jopson v Home Guard Services, appeal case number B9GF0A9E [29/09/2016], Senior Circuit Judge Harris QC overturned the original judgement:
“It therefore seems to me clear that the respondent was not in any position unilaterally to override the right of access which the claimant had bought when she purchased the lease, and that right of access permitted short incidental stops for the purpose of access to her flat...In the circumstances, it is not necessary to deal with arguments about the Unfair Contract Terms, and the factual circumstances are quite different from those in ParkingEye v Beavis [2015] supra. Inter alia, in that case the agreed motorist was not exercising a right ancillary to a right of way...”
The Claimant has no authority to override rights provided by a lease or title. Additionally, ParkingEye v Beavis [2015] is not relevant to residential parking cases because it does not involve a defendant exercising a right.
19) In summary, the case law in this regard is strong: the terms of a tenancy agreement or property title cannot be amended by the displaying of a sign.
19.1) The Particulars of Claim states the Claimant requires a payment for “breaching the terms of parking on the land”. With respect to the case law in paragraph 23, I cannot have entered a valid contract with the Claimant, due to Primacy of Contract, and so cannot be in breach of any terms.
20) Additionally, this case can be distinguished from ParkingEye v Beavis [2015] UKSC 67, which was dependent upon an undenied contract formed by signage forming a clear offer and which turned on unique facts regarding the location and interests of the landowner. Strict compliance with the BPA Code of Practice was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this case.
20.1) In ParkingEye v Beavis [2015] it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other “legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question”. The true test was held to be “whether the impugned provision is a secondary obligation which imposes detriment on the contract-breaker out of all proportion to any legitimate interest […] in enforcement of the primary obligation”
20.2) There can be no “legitimate interest” in penalising residents or their visitors for using parking spaces that they have an unequivocal right to, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is unconscionable, contrary to the requirement of good faith and “out of all proportion to any legitimate interest” to essentially fine residents or their visitors for using allocated parking spaces.
20.3) As further explained in Paragraph 24, the Claimant is not a BPA Approved Operator, so they cannot strictly comply with the Code of Practice in any case.
Other Matters
21) Before 3rd May 2017, I notified the British Parking Association (“BPA”) of the Claimant’s unauthorised use of the “BPA roundel” on their signage on the Management Land (seen in Exhibit O).
21.1) On 3rd May 2017, I received a response from the BPA (Exhibit P) confirming that, whilst “UK Car Park Management Ltd are a corporate member of the BPA…they are not part of the BPA Approved Operator Scheme (AOS)”, and that “only BPA AOS members can use the BPA AOS Roundel”.
21.2) On 21st August 2018, I noticed that the Claimant had removed the BPA roundel from their signage (Exhibit Q), presumably after being instructed to do by the BPA.
21.3) I am of the opinion that the Claimant used the BPA roundel without authorisation in an attempt to increase their perceived authority, and thus mislead residents and visitors. I also believe that the Claimant was therefore in breach of the Consumer Protection from Unfair Trading Regulations 2008 (and Amendment 2014) at the time of the alleged parking infringement.
I believe the facts contained in my witness statement are true.
Posted by: DragonQ Thu, 30 Aug 2018 - 15:46
Post #1412427
I received a letter from Gladstones stating that they have yet to receive a copy of my Defence and that I am required to send them it. I can see nothing in the Claim Form that says I have to send it to the Claimant and page 15 of https://www.judiciary.uk/wp-content/uploads/JCO/Documents/CJC/Publications/Other+papers/Small+Claims+Guide+for+web+FINAL.pdf states that:
QUOTE
If you file a defence, the court will send the claimant a copy of the defence, together with other documents for the claimant to complete.
Are they just talking bollocks again?
Posted by: ostell Thu, 30 Aug 2018 - 16:23
Post #1412446
Yes, the court send a copy of the defence to the claimant, as you have found out. They must have a new intake of school leavers. After that everything that you send to the court you send a copy to the claimant as well.
Posted by: Eljayjay Thu, 30 Aug 2018 - 20:31
Post #1412541
ostell is absolutely right.
There is no need to send a defence to the Claimant. That is done for you. The Court will also send other documents (mainly the Directions Questionnaire) for the Claimant to complete.
But you must send your witness statement, exhibits and statement of legal arguments (if you have one) to both the Court and the Claimant.
Posted by: nosferatu1001 Fri, 31 Aug 2018 - 10:28
Post #1412648
And the DQ, as the DQ tells you
Pretty much ,PAST the defence, you serve on claimant, file with court.
Posted by: DragonQ Fri, 31 Aug 2018 - 13:04
Post #1412699
Yeah I sent them the DQ a while back and I will send them my witness statement by email on the day of the deadline. I'm gonna assume my witness statement is OK so I'll sort out the exhibits this weekend. Can I highlight sections of documents or add sticky notes, or should I only use untouched copies?
I'll also send Gladstones a letter telling them to contact the court if they haven't received my defence.
Posted by: nosferatu1001 Fri, 31 Aug 2018 - 13:09
Post #1412703
If by "them" you mean "the claimant", then yes thats fine to send them your WS and exhibits by email. Probably several
You CANNOT do so via email to the court.
You MSUT ideally HAND DELIVER a lovely printed bundle with everything in a folder, with dividers and labels and an index. Make it easy as possible for the court
You can indeed highlight copies, have untouched originals with you in case.
Posted by: DragonQ Sat, 1 Sep 2018 - 14:18
Post #1413004
OK thanks, I will highlight any lines I have referenced in the witness statement. Do I need to provide the previous cases I am citing as exhibits or can I assume the court is aware of these and has copies?
Posted by: SchoolRunMum Sat, 1 Sep 2018 - 23:44
Post #1413121
You must provide transcripts of court cases you are relying on, but not the Beavis case as that is well known, being a Supreme Court *decision* (of sorts).
Posted by: DragonQ Sun, 2 Sep 2018 - 17:46
Post #1413260
EDIT: Never mind, found it.
Posted by: DragonQ Mon, 3 Sep 2018 - 15:42
Post #1413499
I added all 4 transcripts as exhibits, I think I have 23 now. Most are just to show how useless the claimant was (ignoring questions, using templated letters that were not appropriate, telling me incorrect information), then I have my property title, the transfer document, the case history, and finally the stuff about the signage just for added proof of their shady behaviour.
I've printed all the exhibits, highlighted the most relevant sentences/paragraphs, and put them all in a binder with labelled tabs separating each exhibit. The only things left to do are sanity check and print the witness statement, label the folder itself, hand it to the court, then email it all to Gladstones.
Posted by: nosferatu1001 Tue, 4 Sep 2018 - 08:25
Post #1413652
Id suggest multiple emails
Potentially call up and confirm they have them
Gladstones have lied to court before and said they didnt have them.
Posted by: ostell Tue, 4 Sep 2018 - 08:43
Post #1413662
Put on the tag in the email that confirms receipt of the message, not read receipt, on to their mail server. If they don't read it them not your problem.
Posted by: DragonQ Tue, 4 Sep 2018 - 10:02
Post #1413708
QUOTE (nosferatu1001 @ Tue, 4 Sep 2018 - 08:25)
Id suggest multiple emails
Potentially call up and confirm they have them
Gladstones have lied to court before and said they didnt have them.
I might need to split it between emails anyway since the attachments will be rather large. Calling them up and confirming they've received the email is a good idea though!
QUOTE (ostell @ Tue, 4 Sep 2018 - 08:43)
Put on the tag in the email that confirms receipt of the message, not read receipt, on to their mail server. If they don't read it them not your problem.
Err I don't know what that is. I've heard of read receipts but not send receipts - surely if the email doesn't send I get a "failed to deliver" email back?
Posted by: nosferatu1001 Tue, 4 Sep 2018 - 10:51
Post #1413723
Only if their mail server is configured to send those responses. Not all do, and for good reasons.
Posted by: cabbyman Tue, 4 Sep 2018 - 12:56
Post #1413793
In Outlook, under 'options,' is a check box to request a delivery receipt. If you don't ask, you don't get.
Posted by: DragonQ Wed, 5 Sep 2018 - 22:08
Post #1414208
Neither of my email providers supports delivery receipts but I've requested a read receipt (knowing they may well choose not to send one). I had to send the documents as links because their mail server kept rejecting emails with attachments. I sent the email to their enquiries@gladstonessolicitors.co.uk address and also the only other person-specific email address I've been given in all previous correspondence.
Posted by: ostell Thu, 6 Sep 2018 - 07:06
Post #1414232
They may say they didn't receive them, which is strictly true, if the just have a link. Looks like it's a print and post jobby, unless you can email them and get an emaill address for the service of documents. Or even a phone call, though a email would be preferable as proof
Posted by: DragonQ Thu, 6 Sep 2018 - 08:06
Post #1414241
I plan on calling them and asking them if they've received the emails and, if not, where I should send them to. I'll try to split the attachments in half too so there's evidence I have tried to help them as much as possible. I'll probably also ask the court about this when I deliver the folder later.
Posted by: nosferatu1001 Thu, 6 Sep 2018 - 09:10
Post #1414265
They have definitely accepted attachments before, Id suggest its a size limit
You MUST, if you can only send links, MUST send by post. FIRST CLASS, FREE PROOF OF POST. Not registered.
Posted by: DragonQ Thu, 6 Sep 2018 - 09:30
Post #1414272
Just dropped off the folder to the court. Pretty crap that all they have is a drop box so there's no receipt or evidence of when I dropped it off.
Posted by: nosferatu1001 Thu, 6 Sep 2018 - 09:41
Post #1414280
FIll out a Certificate of FIling. Google it.
Posted by: DragonQ Thu, 6 Sep 2018 - 10:10
Post #1414292
QUOTE (nosferatu1001 @ Thu, 6 Sep 2018 - 09:10)
They have definitely accepted attachments before, Id suggest its a size limit
You MUST, if you can only send links, MUST send by post. FIRST CLASS, FREE PROOF OF POST. Not registered.
Yeah I have also now sent them the documents as email attachments as well, split over two emails. I got undelivered messages when sending everything in a single zip file before, even though their mailbox says they can accept attachments up to 25 MB and mine only totalled 21 MB!
QUOTE (nosferatu1001 @ Thu, 6 Sep 2018 - 09:41)
Fill out a Certificate of Filing. Google it.
You mean to register the fact that I served the documents on the claimant's solicitor? Sure, do I then email it to the court?
I did call the court and the automated message said they can't comment on whether they've received documents for 10 working days (
) so I guess I'll have to wait for that.
Posted by: nosferatu1001 Thu, 6 Sep 2018 - 10:28
Post #1414302
No, to register the fact you filed the bundle at Court. You file and court, serve on claimant, hence a cert fo filing is to record the date you filed the bundle at court.
No, you dont wait for that.
Posted by: DragonQ Thu, 6 Sep 2018 - 10:36
Post #1414311
OK now I'm confused. The document I think you're talking about (N215) is a Certificate of Service and doesn't seem to relate to court filings since it has options for defendant, claimant, solicitor, and litigation friend. I cannot find any form called Certificate of Filing.
Posted by: ostell Thu, 6 Sep 2018 - 10:47
Post #1414315
Filing/ Service all the same basically. You can also send the form to the court to say you have served the paperwork with Gladstones.
Posted by: DragonQ Thu, 6 Sep 2018 - 10:56
Post #1414317
OK so shall I fill out one for service on Gladstones, one for filing with the court, and then email them both to the court?
Posted by: nosferatu1001 Thu, 6 Sep 2018 - 10:59
Post #1414319
Yes, thats a good idea.
Posted by: DragonQ Thu, 6 Sep 2018 - 16:56
Post #1414418
Received a Notice of Trial Date today. The claimant has 3 weeks to pay the court fee and, if they do, the trial will be a month after that. It goes without saying that Gladstones haven't met the deadline for sending me their witness statement and evidence so I plan to call the court tomorrow to ask what they're going to do about that.
Posted by: cabbyman Thu, 6 Sep 2018 - 17:19
Post #1414422
Do you need to do that tomorrow or wait for Gladstones to dig a bigger hole? I'm wondering if maybe you wait until you get a notification of the fee being paid and then raise it with the court?
I may be totally wrong so see what others say.
Posted by: nosferatu1001 Thu, 6 Sep 2018 - 17:38
Post #1414426
Hearing. Not trial.
Did they get yours ok?
Cal, the court
Ask if the court ha aa copy of their bundle, saying you don't have your copy. Ask that the clerk adds that to the file - late service is a serious disadvantage to you.
Posted by: DragonQ Thu, 6 Sep 2018 - 18:09
Post #1414434
QUOTE (nosferatu1001 @ Thu, 6 Sep 2018 - 17:38)
Hearing. Not trial.
Well the form is headed "Notice of Trial Date".
QUOTE (nosferatu1001 @ Thu, 6 Sep 2018 - 17:38)
Did they get yours ok?
No idea, I called them and the automated message said it takes 10 working days for them to process documents (which is ridiculous) so I thought I'd at least give them a day to fish it out of the document drop box.
QUOTE (nosferatu1001 @ Thu, 6 Sep 2018 - 17:38)
Cal, the court
Ask if the court ha aa copy of their bundle, saying you don't have your copy. Ask that the clerk adds that to the file - late service is a serious disadvantage to you.
Yeah I will call tomorrow asking about both my and Gladstones' documents.
Posted by: DragonQ Fri, 7 Sep 2018 - 09:07
Post #1414529
OK so I called the court, they said there is currently a 24 working day wait for documents to be "added to the system" and processed. The advice given was to:
- Call again a couple of weeks before the hearing to check if the documents had been processed and, if not, send an email to the court with the hearing date in the subject to clarify the urgency.
- Email the court now to tell them I hadn't received the claimant's documents, since this is more likely to be seen by the judge than the note the clerk has added to my file.
Posted by: nosferatu1001 Fri, 7 Sep 2018 - 09:44
Post #1414536
The latter is key
You know the court has the bundle from you so I wouldnt panic there.
However, the fact YOU have not been Served with a copy of the Cs bundle is crucial. You should ask the court to apply the normal sanction for breach of an order, and that the claimants bundle is struck out. As they will have no eiidence to prove their claim, just an unsubstantiated claim form, the claim should also be struck out.
Posted by: DragonQ Fri, 7 Sep 2018 - 09:46
Post #1414538
Yep, I plan on quoting the original order that said what would happen if deadlines were missed in the email.
Posted by: DragonQ Fri, 7 Sep 2018 - 15:56
Post #1414658
Got the claimant's witness statement in the post today. I'll still email the court saying it was a day late but I doubt they'll do anything about that.
The claimant reference that they haven't received my defence yet and thus they have no evidence of my right to park. I find it amusing that they describe my response to their request for my defence as "curt" when their request letter was even briefer and attempted to patronise me with incorrect information!
Anyway, their main points of contention seem to be:
- Most leases "contain provisions to allow for estate regulations to be brought in...for better estate management".
- Parking Eye v Beavis [2015] and VCS v HMRC [2013] "made it clear that a contracting party need not show they have a right to do what they have promised in the performance of the contract, nor is the agreement between the [parking operator] and landowner of any relevance".
They also include a copy of the authorisation to provide parking, which suggests that the management company is the freeholder of the communal land.
The rest of it is irrelevant, e.g. going over the rules of parking according to the signs, refuting my request for compensation after wrongful use of my data (which they should know I am not even pursuing in this case), justifying their price hike over the £100 stated on the sign, etc.
I'm going to assume the court will grant them leniency here because presumably it is the court's fault that they don't have my defence. If they do eventually get it, I imagine they will re-do this witness statement, if allowed.
P.S. I am also mildly annoyed that they keep getting my title wrong despite me including it at the end of every letter I've sent them, lol.
Posted by: Eljayjay Fri, 7 Sep 2018 - 19:56
Post #1414717
Leases say lots of things. The comment that most leases "contain provisions to allow for estate regulations to be brought in...for better estate management" may be true. Of course, if estate regulations have been brought in, the Claimant should know and should be able to produce a copy of them in Court. So, if this comes up in Court, your response would be "if there are any such regulations, why have you not included them in your exhibits?".
On VCS v HMRS...
Generally, VCS v HMRC is cited by the parking companies to show that they can enter into a contract with someone to provide parking without owning the land and without even having the permission of the owner or occupier of the land.
That is very true, I could enter into a contract with you to let you park your car next Saturday on Horse Guards Parade for 50p for the day. Recognising a bargain, you accept the offer and you pay me the 50p.
So, we now have a contract. The is an offer, there is an acceptance, and there is your 50p as consideration.
Your problem comes when you are arrested and your car is impounded. My problem comes when you sue me for breach of contract because, incredibly, I do not own the parking rights at Horse Guards Parade and, therefore, I do not have any consideration for your 50p.
And that is what the judgement says except that it talks about traders offering shares for sale which they do not own. The difference is that traders can buy the shares by the time they need to cough them up. So, that does not cause any problems.
But it also talks about Buckingham Palace being offered for sale. Now, that would cause a problem because any person offering to sell that to anyone else is almost certainly not going to acquire the right to sell it by the agreed completion date.
So, the bit of the judgement quoted below actually works against the parking companies not in their favour...
The flaw in the reasoning is that it confuses the making of a contract with the power to
perform it. There is no legal impediment to my contracting to sell you Buckingham Palace.
If (inevitably) I fail to honour my contract then I can be sued for damages. On the stock
market it is commonplace for traders to sell short; in other words to sell shares that they do
not own in the hope of buying them later at a lower price. In order to perform the contract
the trader will have to acquire the required number of shares after the contract of sale is
made.
The parking company in your case did not have the right to offer parking to you and did not acquire that right by the time a parking ticket was affixed to your vehicle. So, they had no consideration for their parking charge.
As regards Parking Eye v Beavis, the reason why Parking Eye did not have to produce evidence of their right to operate on the land was simply because Mr Beavis accepted that they did in order to cut to the chase insofar as the real issues in the case were concerned.
All of that rubbish appears in almost every Gladstones-drafted witness statement.
Posted by: DragonQ Mon, 10 Sep 2018 - 09:25
Post #1415236
QUOTE (Eljayjay @ Fri, 7 Sep 2018 - 19:56)
Leases say lots of things. The comment that most leases "contain provisions to allow for estate regulations to be brought in...for better estate management" may be true. Of course, if estate regulations have been brought in, the Claimant should know and should be able to produce a copy of them in Court. So, if this comes up in Court, your response would be "if there are any such regulations, why have you not included them in your exhibits?".
Indeed, there have been no changes to my lease. I actually moved into this property after UK CPM were employed to "look after" the parking areas so you'd have thought the lease would've been updated before I signed on the dotted line.
QUOTE (Eljayjay @ Fri, 7 Sep 2018 - 19:56)
On VCS v HMRS...
Generally, VCS v HMRC is cited by the parking companies to show that they can enter into a contract with someone to provide parking without owning the land and without even having the permission of the owner or occupier of the land.
That is very true, I could enter into a contract with you to let you park your car next Saturday on Horse Guards Parade for 50p for the day. Recognising a bargain, you accept the offer and you pay me the 50p.
So, we now have a contract. The is an offer, there is an acceptance, and there is your 50p as consideration.
Your problem comes when you are arrested and your car is impounded. My problem comes when you sue me for breach of contract because, incredibly, I do not own the parking rights at Horse Guards Parade and, therefore, I do not have any consideration for your 50p.
And that is what the judgement says except that it talks about traders offering shares for sale which they do not own. The difference is that traders can buy the shares by the time they need to cough them up. So, that does not cause any problems.
But it also talks about Buckingham Palace being offered for sale. Now, that would cause a problem because any person offering to sell that to anyone else is almost certainly not going to acquire the right to sell it by the agreed completion date.
So, the bit of the judgement quoted below actually works against the parking companies not in their favour...
The flaw in the reasoning is that it confuses the making of a contract with the power to
perform it. There is no legal impediment to my contracting to sell you Buckingham Palace.
If (inevitably) I fail to honour my contract then I can be sued for damages. On the stock
market it is commonplace for traders to sell short; in other words to sell shares that they do
not own in the hope of buying them later at a lower price. In order to perform the contract
the trader will have to acquire the required number of shares after the contract of sale is
made.
The parking company in your case did not have the right to offer parking to you and did not acquire that right by the time a parking ticket was affixed to your vehicle. So, they had no consideration for their parking charge.
I guess they would argue their contract with the management company does give them the right to offer me parking. It seems that a closer analogy would be offering the Queen the right to enter Buckingham Palace at £5 a day, and additionally stipulating that by entering Buckingham Palace she automatically agrees to this contract....even though she already has the right to be on the property.
Posted by: DragonQ Wed, 17 Oct 2018 - 09:59
Post #1426028
The hearing is scheduled for next week. Does anyone have any advice for the hearing or what I should prepare beforehand?
Posted by: nosferatu1001 Wed, 17 Oct 2018 - 10:30
Post #1426037
- get your skeleton together. SUmmarise their failings and your strengths.
- get yoru costs schedule together. TWO sections
Ordinary costs - half a days loss of pay OR LOSS OF HOLIDAY capped at £95. Mileage. Parking
Unreasonable costs - show how the claimant has behaved unreasonably (bullet points) and state that,under CPR27.14(2)(g) you believe this meets the threshold of "unreasonable" and you would like the following costs to be ordered:
- time to research defecne
- time to write defence
- time to collect evidence for WS
- time to write WS
all time is at £19 per hour
printing, postage, etc. Itemised. Bring receipts on the day
File BOTH with the court AND claimant 24 horus before the case is due.
Posted by: DragonQ Sun, 21 Oct 2018 - 10:00
Post #1427082
QUOTE (nosferatu1001 @ Wed, 17 Oct 2018 - 10:30)
- get your skeleton together. SUmmarise their failings and your strengths.
- get yoru costs schedule together. TWO sections
Ordinary costs - half a days loss of pay OR LOSS OF HOLIDAY capped at £95. Mileage. Parking
Unreasonable costs - show how the claimant has behaved unreasonably (bullet points) and state that,under CPR27.14(2)(g) you believe this meets the threshold of "unreasonable" and you would like the following costs to be ordered:
- time to research defecne
- time to write defence
- time to collect evidence for WS
- time to write WS
all time is at £19 per hour
printing, postage, etc. Itemised. Bring receipts on the day
File BOTH with the court AND claimant 24 horus before the case is due.
I have done a costs list and am going to go through the reasons that they have acted unreasonably now. How am I meant to estimate costs of printing? I have no receipts for anything except parking because I used first class post or email for all correspondence.
Can I refer back to the Skeleton Argument in the Unreasonable Costs section of the Costs document? Otherwise I feel like there's a lot of duplicated text.
Posted by: DragonQ Sun, 21 Oct 2018 - 13:22
Post #1427117
Skeleton summary argument:
QUOTE
In the County Court at Guildford Case BLAH Between
UK Car Park Management Limited
and
BLAH
______________________________________
DEFENDANT’S SKELETON ARGUMENT
______________________________________
Preliminary
1) I, BLAH, am the Defendant in this claim. The facts in this skeleton argument come from my personal knowledge except where stated.
2) I was the keeper of the vehicle in question (registration BLAH) on 19th March 2017. On that date it was parked in a visitor bay on the Campbell Fields estate.
3) I received a parking charge notice (reference: BLAH) on 20th April 2017 for “not displaying a valid permit”.
Primacy of Contract
4) This case relates to “Management Land”, where my rights are governed by the Transfer (Exhibit P), referred to in my Property Title (Exhibit O)
5) Within the Transfer, I am granted the unequivocal right to use the visitors’ parking spaces on the Management Land, as described in Schedule 1 Clause 10.
5.1) The only restrictions on that right listed in the Transfer are that parked vehicles must not be “heavy or light goods or commercial vehicle caravan boat trailer or similar type of vehicle”, and cannot exceed “three tonnes gross laden weight”.
5.2) The Transfer does not contain any parking restrictions pertaining to permits or charges. It also does not grant any rights to the Management Company or any other party pertaining to parking restrictions or charges and has no provision for a third party to alter the Transfer in any way.
5.3) The intention of the Transfer was clearly to provide residents the right to use the visitors parking spaces.
6) The Claimant’s contract with the Management Company to enforce parking restrictions cannot remove or override the rights granted to me in the Transfer due to Primacy of Contract. Any contract the Claimant avers to exist due to the signage around the Management Land is irrelevant for the same reason. Thus, I cannot have entered a valid contract with the Claimant or be liable for charges for breaking any contract.
6.1) The Management Company has not even attempted to alter the terms of the Transfer to allow the Claimant to enforce parking restrictions on residents.
Case Law
7) The case law in this regard is strong: the terms of a tenancy agreement or property title cannot be amended by the displaying of a sign, nor can private parking companies override existing contracts via contracts with landowners. I rely on the following cases in my Witness Statement:
(i) Pace Recovery and Storage v Mr N [2016] C6GF14F0 [2016] (Exhibit Q);
(ii) Link Parking v Ms P C7GF50J7 [2016] (Exhibit R);
(iii) Saeed v Plustrade [2001] EWCA Civ 2011 (Exhibit S);
(iv) Jopson v Homeguard Services [2016] B9GF0A9E [2016] (Exhibit T).
8) This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67, which was dependent upon an undenied contract formed by signage. Indeed, ParkingEye v Beavis [2015] held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other “legitimate interest” and there can be no legitimate interest in penalising residents or their visitors for using parking spaces that they have an unequivocal right to.
I believe that the facts contained in my skeleton argument are true.
Costs claim:QUOTE
In the County Court at Guildford Case No. BLAH Between
UK Car Park Management Limited
and
BLAH
______________________________________
DEFENDANT’S COSTS
______________________________________
1) I, BLAH, am the Defendant in this claim. The costs incurred by myself to defend this claim are listed below.
Court Hearing Costs
2) Court hearing costs:
(i) Half a day’s pay = £80;
(ii) Mileage driving to court and back to place of work at government approved rate of 45p per mile = £2.25;
(iii) Parking at BLAH car park at £1.30/hour for 3 hours = £3.90;
Total: £86.15
Claimant’s Behaviour
3) I believe the Claimant has acted unreasonably in bringing this case to court. The reasons for this are listed below.
4) The Claimant knew I lived on the estate where they issued the parking charge notice and if they had acted with skill, care and diligence, they would have known that residents have a right to use visitor spaces, regardless of their contract with the landowner.
5) The Claimant’s reply to my appeal was laughable. They:
(i) misinterpreted my core argument (deliberately or otherwise) that I had a right to use the parking space in question;
(ii) admitted that “parking conditions are in place to stop unauthorised parking”;
(iii) claimed that they “hold a legal contract that authorises [their] enforcement officers to monitor and maintain parking areas on behalf of the landowner”, which is irrelevant due to Primacy of Contract;
(iv) did not explicitly state whether my appeal was accepted or rejected.
6) My reply to this letter, seeking confirmation of their decision, went unanswered.
7) The Claimant’s signage used the “British Parking Association Approved Operator” roundel without the BPA’s approval. I believe that the Claimant was therefore in breach of the Consumer Protection from Unfair Trading Regulations 2008 (and Amendment 2014) at the time of the alleged parking infringement.
8) The Claimant is attempting to charge a ridiculous amount of interest (8%) on the money they believe is owed, given the Bank of England base rate has been between 0.5% and 0.75% since the parking charge was issued.
Claimant’s Solicitor’s Behaviour
9) I believe the Claimant’s solicitor has acted unreasonably in bringing this case to court. The reasons for this are listed below.
10) Gladstones Solicitors’ robo-claims are against the public interest, demonstrate a disregard for the dignity of the court, and are unfair on unrepresented consumers.
10.1) Gladstones Solicitors’ generic claims process leads them to cite irrelevant court cases and fail to answer questions from defendants, including myself. They do not understand the nature of the case they are pursuing and are just trying to scare consumers into paying charges for which they are not liable.
11) Gladstones Solicitors’ Letter Before Claim was not compliant with the Pre-Action Protocol for Debt Claims (“the PAP”). I replied asking for clarification of their intent, with very specific points. Their reply ignored my request for specific answers, so I sent an even more succinct request for clarification. This was ignored.
12) Gladstones Solicitors served the Claimant’s completed Directions Questionnaire, which included two special direction requests. One was designed to give them an unfair advantage in court, the other was contrary to Civil Procedures Rules 26.2A(3).
13) Only 7 working days before the deadline to submit witness statements and evidence to the Court, Gladstones Solicitors incorrectly asserted that I was required to submit my Defence to them. In light of their previous behaviour and either their incompetence or wilful lies, I respectfully declined because it is not my responsibility to do so, especially given that they’d had two months to realise they hadn’t received it from the Court.
13.1) Gladstones Solicitors waited until 9th October 2018 to request my Defence from the Court, over three months after I filed it.
14) In general, I believe all of the above to be evidence of Gladstone’s incompetence and general disregard for the judiciary process, or of scare tactics designed to frighten consumers who are less inclined or able to defend their rights.
Unreasonable Costs
4) Under CPR27.14(2)(g), I believe the facts listed in paragraphs 3-14 meet the threshold of “unreasonable” and would thus ask the Court to order the following costs incurred by myself to be paid by the Claimant:
(i) 3 hours to research Defence at £19/hour = £57;
(ii) 2 hours to write Defence at £19/hour (sent on 30th June 2018) = £38;
(iii) 2 hours to research Witness Statement at £19/hour = £38;
(iv) 4 hours to write Witness Statement and gather evidence at £19/hour (sent on 5th/6th September 2018) = £76;
(v) 2 hours to write Skeleton Argument and this document at £19/hour = £38;
(vi) 6 letters to the Claimant or their solicitor sent by first class post at 67p per stamp (between March 2017 and September 2018) = £4.02;
(vii) Approximately 100 printed pages of documents for the Court and myself at 10p per page including paper and ink costs = £10.
Total: £223.02
I believe that the facts contained in this costs statement are true.
Are they OK?
Posted by: nosferatu1001 Mon, 22 Oct 2018 - 10:18
Post #1427296
8) as you will know, 8% is the approved rate. Remove point 8.
Dont repeat the @£19 per hour. Just make a single sentence stating all time is calcualted at that rate.
Research defence - 3 hours
WRite defence - 2 hours
and so on. Dont be so wordy .
Posted by: DragonQ Mon, 22 Oct 2018 - 11:49
Post #1427325
OK, will change that. Should I attempt to rebut their use of VCS v HMRC? If so, what's the best argument for this?
Posted by: nosferatu1001 Mon, 22 Oct 2018 - 12:55
Post #1427354
Yes, post 158 actually answered it for you
They didnt have the rights in place, so cannot enforce the terms.
Posted by: DragonQ Mon, 22 Oct 2018 - 13:19
Post #1427364
Right but if I say they don't have the right, they will argue their contract with the management company is evidence that they do have the right. Then it just comes back to primacy of contract again doesn't it? Seems like the same argument ultimately but I've added it to the skeleton argument anyway:
QUOTE
9) The Claimant relies on VCS v HM Revent & Customs [2013] EWCA Civ 186, in which Lord Justice Lewison commented:
“The flaw in the reasoning is that it confuses the making of a contract with the power to perform it. There is no legal impediment to my contracting to sell you Buckingham Palace. If (inevitably) I fail to honour my contract then I can be sued for damages. On the stock market it is commonplace for traders to sell short; in other words to sell shares that they do not own in the hope of buying them later at a lower price. In order to perform the contract the trader will have to acquire the required number of shares after the contract of sale is made.”
The Claimant had no right to offer me parking because I already had the right to park, and they did not acquire that right by the time the parking ticket was affixed to my vehicle. Thus, they have no consideration for their parking charge.
Posted by: nosferatu1001 Mon, 22 Oct 2018 - 13:56
Post #1427377
The MC arent the landholder, they need to prove the MC has that right. Thsts why it goes through a chain of contracts
You also need to point out there was no benefit gained so no consideration flowed, and without consideration there is also no contract.
Posted by: DragonQ Mon, 22 Oct 2018 - 17:09
Post #1427451
QUOTE (nosferatu1001 @ Mon, 22 Oct 2018 - 13:56)
The MC arent the landholder, they need to prove the MC has that right. Thsts why it goes through a chain of contracts
You also need to point out there was no benefit gained so no consideration flowed, and without consideration there is also no contract.
Their contract with the management company lists them as the landowner, I'm not sure if that is sufficient evidence that they are though. I imagine the Transfer states that too but I'd need to double check.
Is the following statement sufficient?:
QUOTE
The Claimant had no right to offer me parking because I already had the right to park, and they did not acquire that right by the time the parking ticket was affixed to my vehicle. Thus, there was no benefit gained by myself, the Claimant has no consideration for their parking charge, and the contract was invalid.
Posted by: nosferatu1001 Tue, 23 Oct 2018 - 06:32
Post #1427607
Not invalid, it was never formed
I doubt the mc are. The landowner. They manage. They don't own
Hi can confirm the landowner with form oc2. Costs.
Posted by: DragonQ Tue, 23 Oct 2018 - 06:50
Post #1427609
OK I'm gonna email these to the court and Gladstones now.
Posted by: DragonQ Wed, 24 Oct 2018 - 10:19
Post #1428010
The judge dismissed the case and awarded me £135 in costs.
About 20 minutes after the case was due to start, I was called in. I asked where the other party was, the usher said they requested the case be decided "on the papers". I walked in and the judge said the case is very simple and rests on whether I have a right to park in the space. She then said that the Transfer is the key document and read out Schedule 1 Clause 10 (which I'd highlighted in advance), which says I have a right to use the spaces. She then said "so I'm dismissing the case". This took all of 60 seconds.
We then spent about 5 minutes talking about costs. She said I could only claim costs incurred AFTER the Transfer was provided as evidence to Gladstones, because that is when they should have withdrawn the claim. Hence, I didn't get the full £380 I'd requested.
The final thing I asked was when Gladstones asked to not be present, since they never told me. The judge said they always put a thing in their letter to the court alongside the witness statement basically saying "we might not turn up, in which case please arbitrate on the papers". I assume this is to cover their arses for when they don't think it's worth turning up. The judge said if they'd have turned up the judgement would've been the same.
Posted by: ManxRed Wed, 24 Oct 2018 - 10:23
Post #1428013
A win's a win.
Well done!
Posted by: nosferatu1001 Wed, 24 Oct 2018 - 11:36
Post #1428047
A win is a win, but it sucks you didnt get to see them pay out even more
I dislike the judges reasoning
WIth any skill and care, the claimant would have KNOWN about the transfer. They chose not to perform their job properly, so should pay the price for iit.
Posted by: DragonQ Wed, 24 Oct 2018 - 11:38
Post #1428049
QUOTE (nosferatu1001 @ Wed, 24 Oct 2018 - 11:36)
A win is a win, but it sucks you didnt get to see them pay out even more
I dislike the judges reasoning
WIth any skill and care, the claimant would have KNOWN about the transfer. They chose not to perform their job properly, so should pay the price for iit.
She did ask me why I thought they'd behaved unreasonably and I started with exactly that, but she essentially said they had no evidence so it wasn't unreasonable until the point when they had evidence. I disagree too but it is what it is.
Posted by: nosferatu1001 Wed, 24 Oct 2018 - 11:43
Post #1428055
They had no evidence becaue they didnt do their job properly in the first place
The judge is saying its ok to be crap at your job
Posted by: ManxRed Wed, 24 Oct 2018 - 14:15
Post #1428121
Yes. These companies perform no (I nearly used the word 'little' but 'no' is the accurate one) due diligence on these things and they ought to pay the price when it bites them on the backside.
Posted by: Eljayjay Wed, 24 Oct 2018 - 18:38
Post #1428249
The win is the most important thing.
Well done!
Posted by: DragonQ Thu, 8 Nov 2018 - 11:24
Post #1432170
So they haven't paid me by the judge's deadline. Should I speak to Gladstones or UKCPM directly?
Posted by: nosferatu1001 Thu, 8 Nov 2018 - 11:53
Post #1432186
Ho wlong over are they?
One email to Gladstones - who will be handling sending out the cheque - is reasonable, you dont have to do more. Say you expect it to be remitted no later than 2 days.
Posted by: DragonQ Fri, 9 Nov 2018 - 13:01
Post #1432566
Never mind, got the cheque today. Gladstones are not the most punctual of firms.
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